While in the midst of an election do over, the current board has chosen to include two additional ballots containing bylaw amendments with the new election package.
It is most difficult to be an informed voter, if the voter does not have all of the required information . . .
Unlike changes to policies and procedures such as the recent AECC amendments that require three readings over the course of several months, no copies of either bylaw change have been made available for property owner review. When questioned, the POA president has stated that the two amendments would be available with the ballot package when it is mailed. Lest we forget, the entire ballot fiasco dealing with the capital contribution fee might have been avoided had the amendment been provided to the property owners beforehand for discussion and review. Surely this board does not want to repeat that event by bringing these two issues to vote in such haste. In addition, please consider the following background.
Citation of authority used by leadership never approved by property owners . . .
As acknowledged by the board and as thoroughly researched in a previous blog post, “Governance 101”, (1) amendments to bylaws that affect the “number, classes, election, powers and duties of the Board” require the affirmative vote of two-thirds (2/3) of the Members of the Association entitled to vote. (Note: An information box in a recent e-blast to the community seems to be confusing quorum with the 2/3 affirmative vote requirement.) (2)
What is not openly acknowledged by leadership is the fact that the very bylaw they are seeking to change and which was cited as the authority to deny the voting rights of some in the last election, was never approved by the property owners. Rather it was approved by a majority vote of the board of directors only.
The current board was questioned regarding the validity of this 2006 amended bylaw while also inquiring if a written legal opinion had been obtained from the newly retained law firm regarding some of these questions.
The president’s response was shocking to say the least . . .
To paraphrase, the president stated that some items were discussed with the counsel familiar with the 2006 amendment, (3) and it was indicated that property owner approval was not required for the 2006 amended bylaw as it only contained minor changes from a previous amendment that was approved by property owners in 2004. (4) Now, how is that so? That answer is completely inconsistent with the current two-thirds (2/3) property owner approval requirement. And, after characterizing the changes as minor, the president concluded that there was no need to get a written legal opinion from the new legal counsel.
Minor changes? I do respectfully disagree.
A quick comparison of the 2006 bylaws to the previously approved bylaws not only illuminated sweeping changes to sections dealing with voting, changes to the election committee, and procedures for removal of directors, but also the introduction of the presently disputed delinquency standards. One must continue to ask,
- What exactly are we being asked to approve or amend with this ballot that is about to be mailed?
- Are the 2006 amended bylaws valid and/or enforceable without property owner approval or do they revert back to the previously approved 2004 bylaws?
Unfortunately, the current board’s reluctance to provide an advance copy of the intended bylaw amendments along with a legal opinion from our new law firm addressing some of these questions, does not demonstrate transparency or full disclosure.
Let’s rewind here. Pause. Seat the new board, and address any weaknesses and ambiguities found in the unapproved bylaws with the active participation of the community and new legal representation.
. . . . .
If you would like to see additional information posted in the future, please subscribe for an email notification. Likewise, if you have questions or would like further discussion, I can be contacted at thepcrosses@gmail.com.
Patricia Cross (10438 Big Canoe)
References:
1 Governance 101, December 30, 2019, bcmatters.org
2 E-blast – “Special Events at the Clubhouse . . .”, February 3, 2020 (POAwebsite>login>POA>CommunityOverview>EmailNotifications-20MostRecent>2/03/2020 – Special Events at the Clubhouse)
3 2006 Third and Restated Bylaws (POAwebsite>login>POA>documentarchive>BoardOfDirectors>BigCanoeBylaws>112006ThirdAmendment)
4 2004 Second Amended and Restated Bylaws (POAwebsite>login>POA>documentarchive>BoardOfDirectors>BigCanoeBylaws>102004SecondAmendment)