Q: I am a sitting board member for our HOA and we are coming up next week with our annual board election and a possible change of president (which is badly needed). As of right now, we have only 3 board members present out of 5 due to one moving away and another just resigned.
Our sitting president acts like a dictator who demeans and speaks down at others, even other board members like myself. She also seems tied very closely with the property manager and the board secretary.
We have a chance at three new board members who could replace either the president or the secretary position. I am concerned that myself and the three other new candidates are unfamiliar with the specific duties of the president, vice president and the treasurer. Can you help us understand those specific duties? — M.J., Garden Grove.
Q: Most HOA bylaws have sections describing board officer duties. Unfortunately, the language is often boilerplate and not helpful.
Corporations Code Section 312 provides little guidance – it just requires a corporation to have a chairperson or president, a secretary, and a chief financial officer. The statute states that the duties of officers are as stated in the bylaws or may be determined by the board.
Presidents often misunderstand that their role in a nonprofit mutual benefit corporation is very different from for-profit corporations. HOA presidents normally have very little power because the decision-maker is not the president, but is the board. The president has one vote, the same as every other director. However, if one does not understand the different type of presidency that comes in the HOA, that president could think they are in charge and become somewhat of a dictator – if the board allows them to do so. Boards should be careful to remind their presidents that they chair the meetings and are usually the HOA’s spokesperson and point of liaison with management – but they are NOT the “boss.” Presidents exceeding their authority can find themselves with a disgruntled or discouraged board – or a vote to change officers.
The vice-president normally mainly chairs board or member meetings if the president is absent.
The treasurer is typically charged with monitoring the HOA’s finances. Normally the treasurer has the assistance of a professional management firm, accountant, and/or bookkeeper to keep the HOA’s books, but the treasurer should be conversant with the HOA’s finances.
The secretary is often responsible for keeping meeting minutes, but if the HOA is professionally managed, minutes are often prepared by management. The secretary, like the vice-president, often has little responsibility. However, with professional management, the officer’s primary duty is that of a director- to vote on board decisions.
Board officers normally serve at the pleasure of the board, which can change officers at any time. To change officer positions, the topic should be on the posted open meeting agenda. Some HOAs take the incorrect position that filling or changing officer positions is a “personnel” matter and can be conducted in closed executive session – but “personnel” in the context of Civil Code Section 4935 contemplates persons paid by the HOA as employees – not volunteers.
If the bylaws are vague regarding officer duties, consider board action to clarify officer roles. Lastly, to HOA presidents- please be a leader, not a boss.
Kelly G. Richardson CCAL is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober LLP, a California law firm known for community association advice. Send column questions to Kelly@roattorneys.com.
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