Open Letter to HOA Attorney

The following email was sent to Ryan McCabe, the attorney for The Summit HOA, on August 30. A copy of the email has been sent to the six board members (one Director position has been vacant since April) and to most of the Voting Members. Five-six of the Voting Members have asked that I not send email to them. They need this information but will not receive it. A few of the Neighborhoods don't have Voting Members. Refer to The Scoop.

Dear Mr. McCabe,

Your client, The Summit HOA, desperately needs your legal advice. There is a pre-board meeting on August 31, in advance of the September 13th Regular Board Meeting.

I understand you cannot reply to me without authorization by the board. I hope they will seek your legal advice on these important matters.

The Board is misinterpreting the By-Laws - Art. III, A, 7 Removal of Directors and Vacancy.

The Board apparently intends to ask the Voting Members to elect a director this fall to fill the vacancy resulting from George Reynolds' death in April. That two-year term-of-office does not expire until the end of 2022. This fall the Voting Members are to elect four directors to fill the terms expiring in 2021.

The By-Laws clearly state that a vacancy resulting from the death of a director is to be filled by appointment (not by election). 

From the By-Laws: "In the event of the death, disability, or resignation of a director, a vacancy may be declared by the Board, and it may appoint a successor."

The Board could be interpreting "may be declared" as being a choice it has whether or not to declare the vacancy or appoint.

Isn't that interpretation incorrect? George died. There is a vacancy. The use of "may" is likely used to eliminate the requirement of the board to declare and appoint in a situation where a board member dies shortly before the end of his term. That is not the case here. George died soon after the beginning of his term. The seventh board member does not serve merely as a tie-breaker.

Won't the board be wrong to suggest that the Voting Members elect a director off-cycle to fill the vacant position, which the board has not even yet declared vacant?

The 2,500 Members of the HOA are entitled to a correct understanding and application of the By-Laws by the board. Shouldn't the board, without further delay, declare the vacancy and appoint a new director to the vacant Director position?

It is also possible that there are too few legitimate Voting Members and possibly NO legitimate board members, because the board's Neighborhoods Committee, which was chaired by the late George Reynolds, did not guide Neighborhoods in having the required annual Neighborhood Meetings and Neighborhood Elections. 

For example, Barony Place Neighborhood has not had a Neighborhood Meeting or Neighborhood Election in 2021, 2020, 2019 or 2018. Thus, Barony Place Neighborhood (78 homes) has no legitimate Voting Member and is not represented before the board. I suspect this is true of many of the 28 Neighborhoods. Current board members may have been elected by persons who are not legitimate Voting Members and who, therefore, cannot legitimately cast votes for candidates for the board. 

The HOA may have no documentation of annual Neighborhood Meetings, Neighborhood Elections, and selection of Voting Members and Alternates. 

If current board members have not been properly elected, then they are not legitimate board members. And then the HOA (a South Carolina non-profit corporation) would be operating without a board of directors. Do you think the S.C. Secretary of State and the S.C. Attorney General might be concerned about this?

The copy of this email being sent to Director Vernell Butler is sent to him in his official capacity as a board member and not individually. I request that he not threaten me further.

Sincerely,

Gus Philpott

Resident, Barony Place II

847.971.7083