Owners do not get an official vote at board meetings

Question: During an HOA board meeting, is it common practice to allow the members in the audience to have a vote on board business?

I know the members are allowed to speak if recognized, but going through our bylaws and the Florida statues I have found nothing pertaining to members having a vote along with the board. It seems to me that the board was put in place to protect the members of the association and to make the right choices as to how the association is to be run, rather than having a handful of non-board members making choices for us.

I have been on the board off and on for 20 years, and we have never done this. We are a small association of 62 lots, many of which have turned into rentals, and so resident members are dwindling. Also, is the business that passed because of the outside votes on say, road work, legal? I was told the expense for road repair only passed by two votes because of the audience vote. — B.S.

Answer: The members of the audience at a board meeting are not able to officially vote on board issues at that meeting.

As I have described in the past, a community association is operated by a board of directors that is elected each year by the members. That board is tasked with the responsibility to make business decisions on behalf of the membership. Serving on a board is a tough job. It takes a lot of work, not only because the directors have to attend meetings, but also because they must prepare for meetings by reviewing materials, contracts, bid analyses and other items that will be discussed at the meeting. Board members have a fiduciary relationship to the owners and are expected to put the owners’ interests above their personal interests.

Ordinary owners, in contrast, have no such responsibilities. They can put their own interests first and do not prepare for meetings. They are typically less prepared to make business decisions on behalf of the association than the directors. They were not elected by their fellow members and have no particular claim to be able to represent those owners.

For these reasons, community associations, like many governments, are representative democracies. The people elect representatives whose job it is to properly educate themselves and to make decisions on behalf of their constituents. Now, there are some decisions in both community associations and governments that are so monumental that they require the approval of the people. We usually require the members to vote to amend the governing documents, just like people can vote to amend our state constitution. But, generally, those decisions are large policy issues, rather than issues involving everyday business.

I have seen from time to time well-meaning directors suggest that they will vote on board issues, however the owners who attend each board meeting decide. Of course, that raises the immediate question of why the director should be putting the interests and judgment of random, nonelected owners who happen to attend a particular board meeting (and who represent a tiny fraction of the overall community) above their own? Irish statesman Edmund Burke famously said that “your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.” Directors do not do their community any favors by sacrificing their educated judgment to the opinions of owners who, while admirably interested in the business of the association, have typically not been given the information, nor, ordinarily, engaged in sufficient preparation to make informed decisions about such business.

You mention in your question that the board voted on a road repair project, which only passed because of the audience vote. It is possible that this expenditure required a membership vote, and the board was purporting to conduct such vote at a board meeting, with the owners attending the meeting, voting on the issue in person. But, members can only officially vote at properly noticed membership meetings (usually requiring advanced written notice). It is possible that the association noticed both a board meeting and a membership meeting to occur at the same time. It is also possible that the board confused the issue and only noticed a single board meeting, but purporting to have the membership vote at that meeting.

I see this mistake frequently, particularly when a board purports to conduct a reserve waiver vote at the budget meeting. Or, perhaps the board did in fact try to fill in absent votes with votes of owners who happened to be in attendance. It’s hard to say for sure, but it’s certain that a board vote cannot be officially supplemented by the vote of audience members.

Ryan Poliakoff is a co-author of “New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living” and a partner at Backer Aboud Poliakoff & Foelster, LLP. Email questions to condocolumn@gmail.com. Please include your hometown.

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