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OPEN FORUM
QUESTION: Our board requires that owners give their open forum topic one week in advance of the meeting, and then does not
let them speak on any other issues. In other words, they have to give their
topic before the board publishes its agenda. Can
the board do this?
ANSWER:
I believe a court would deem the practice unreasonable. Not even city
councils, which are far more bureaucratic, require a week's notice. You
can attend a city council meeting and simply fill out a request on the night of
the meeting. Courts would likely consider the one-week requirement a ruse by the
board to keep owners from commenting on agenda topics.
DIRECTORS
CANNOT
HOLD TWO SEATS
QUESTION: We have two-year staggered
terms. A board member is running for another two-year term
while he still has one year left on his current term. Shouldn't he resign from
his current seat before running for another one?
ANSWER:
Yes, he should resign. Directors cannot hold
multiple seats on the board. If a director has one year
left on his term but wants to run for an open
two-year seat in an upcoming election, he must
resign prior to running for the open seat. Otherwise,
the director will hold two seats and improperly have two votes on the board. If
he promises to resign his first seat after winning the two-year position, he
will immediately create another opening on the board. This defeats the purpose
of the election. Only directors whose terms are ending may run for another term
(assuming there are no term limits).
OFFICERS CANNOT VOTE
 QUESTION: Our
board originally had
5 directors. One moved away. With only 4 members, it seemed like
the board always deadlocked with 2-2 votes. Since one of our directors is both
secretary and treasurer, the president said this entitles him to two
votes. Is this
legal?
ANSWER:
Your secretary/treasurer cannot raise both hands each time he votes. It does not matter that a director holds two
offices since officers cannot vote; only directors can vote. If you have four
directors, you have four votes--one for each director. If the board
cannot agree on who to appoint to the empty seat, they should let the
membership elect someone to fill the seat.
VOTING TO VIOLATE THE LAW
QUESTION: The board knowingly hired a worker that is an illegal immigrant. He does not
have a social security number so he cannot be added to our payroll. I do not want to
be prosecuted or fined because we
know his status.
ANSWER:
Sometimes boards think they are acting in the association's best interest if
they save money by hiring undocumented workers. It may save a few dollars but it creates significant risk ranging from
workers' comp issues to fines.
Your board should immediately
terminate his employment.
Personal Liability. Your fellow directors may not realize that they
are personally at risk. Insurance will
not cover any fines levied for the illegal hiring.
Directors will likely be liable for the fines. The
business judgment rule will
not protect them from liability since knowing violations of the law are not within a
director's scope of duties and a prudent person would not take such actions. If
your fellow directors refuse to fire the illegal immigrant, you need to be on
record in the minutes opposing the board's action. If they refuse to put it in
the minutes, you need to put it in a letter to each of the directors and keep a
copy for your files.
Very truly yours,
Adrian Adams, Esq.
Adams Kessler PLC |
