Questions for the HOA's Attorney

The Board of Directors should ask the HOA's attorney the following questions. 

Q. If the Board runs the HOA within the law and within the rules and regulations set out in the Governing Documents (CC&Rs, By-Laws, Procedures Reference Manual), the directors are probably entitled to a shield from personal liability as Directors and Officers. But what if they don't? Or what if they themselves are not legitimately in office? Could they have exposure to personal liability, even though the HOA is a corporation?

Q. Would the HOA's D&O insurance cover them? (Also, ask the insurance company this question.)

Q. Was the attorney properly retained by the HOA? Because no Directors or Officers had been duly-elected in accordance with the By-Laws, is it possible that the HOA has, in fact, no legitimate Directors and Officers and, therefore, no one with the authority to enter into discussions with a new attorney or to engage his services?

Q. Should the Board insist that the By-Laws be complied with in regard to elections by Neighborhoods of Voting Members and Alternates?

Q. How many of the Voting Members (names published in the monthly Summit Scoop) are legitimate Voting Members? More than one? Is Barony Place the only neighborhood with a legitimate Voting Member? Show the attorney the written documentation from the office that registers the information from the most-recent Annual Neighborhood Meeting from every Neighborhood.

Q. Is it an essential, primary duty of the HOA to establish bonafide, legitimate Voting Members for every Neighborhood, so that homeowners are properly represented?

Q. Should the Board immediately declare that "getting signatures" is an invalid process for selecting a Voting Member, since it is not mentioned anywhere in the By-Laws?

Q. Must the Board acknowledge that the HOA cannot amend the CC&Rs or the By-Laws, until there is a sufficient number of legitimate Voting Members (in compliance with the By-Laws) to do so?

Q. Did the November 12th Annual Meeting of Voting Members have a quorum of legitimate Voting Members?

Q. Were those homeowners who voted in the election of directors on November 12, 2024 legitimate Voting Members? 

Q. What is the legal effect of an election of directors, if there was no quorum of legitimate Voting Members at the Annual Meeting of Voting Members?

Q. Should Minutes be prepared and published for every meeting of the Voting Members, including the Annual Meeting?

Q. Should the Board make decisions in pre-board or other special meetings of the board, out of sight of Members and unreported to Members? (Ex., the No-Guns sign at the office/pool (May 28, 2024) and the decision not to increase dues (before the Nov. 12th meeting)?

 

Q. Are Minutes prepared and published for all Board meetings, including pre-board meetings? Should a Member be able to inspect those Minutes of pre-board meetings within a reasonable time after any meeting?

Q. Must the President inform the other board members of all discussions with the attorney for the HOA?

Q. Does the attorney represent the HOA or the President? How does the attorney confirm that any instructions to him are the will of the Board?

Q. Should the first order of business at the November 12, 2024 board meeting have been to elect officers for the next 12 months? The 6:30PM board meeting was the first meeting of the Board following the Annual Meeting of Voting Members; i.e., it was the Organizational Meeting.

Q. Should the new officers of the Board have been announced to the Members shortly after the private, closed election and at the December 3rd open Board Meeting?

Q. Should the 2025 Budget have been presented to the full Board on November 12, 2024? Should the Budget Sub-Committee or the Finance Committee have recommended its 10% dues increase at that public board meeting? Should the Treasurer have made a Motion to increase dues by 10%? Should the full, seven-member Board have voted on that Motion to increase dues?

Q. Should the 2025 Budget, once approved on November 12, 2024, have been promptly published on the website and announced to the Members by email?

Q. Is the Board precluded from making decisions in pre-board meetings, special board meetings, or by telephone, except in emergency conditions? If it does so, must it announce that decision at the next public board meeting and record it in the Minutes? If the Board does make a decision in private, must it ratify that action in public at the next open board meeting?

Q. Did the Board consider and approve in advance, by vote, the action by the President to direct the HOA's attorney to send a Cease and Desist Letter to Gus Philpott on August 28, 2024? At that time the board had only six directors. Should the vote have been recorded by name in the Minutes of that meeting, if it was not unanimous?