QUESTION: The secretary of our association board was absent at a recent board meeting. The vice president acted as the secretary.
When the board received copies of the meeting minutes, they found that most of the business that had been conducted at the meeting was not noted in the minutes. Many of the items were incorrect. The minutes were signed by the secretary who had been absent from the meeting.
What is the liability of the board members who accepted these minutes at the subsequent board meeting? Is it proper for a secretary to prepare and sign minutes of a board meeting that he or she did not attend?
ANSWER: Board members have a duty to see that minutes are true and correct. The minutes that are approved at a subsequent meeting are the official record of the association.
Robert's Rules of Order, the manual of parliamentary procedure that most associations rely upon, says that the approved minutes may be corrected or amended regardless of the amount of time that has elapsed, so it is still possible for the board to correct the errors.
I always recommend that the name and signature of the person who took the meeting notes and wrote the minutes appear at the end, for example, "Submitted by John Doe, vice president, in the absence of the secretary."
After approval, the minutes should be dated and signed by two officers, usually the president and the secretary. The signatures of the secretary and president affirm that the minutes were approved as written.
Therefore, I do not feel that it is improper for the secretary's name to appear on these minutes that someone else prepared.
Agenda Should State All Items of Meeting
Q: Can a proxy be used at a homeowner association annual meeting for voting on any issue other than the items stated on the agenda?
During our association's annual meeting, the subject of assessing owners for the cost of painting was introduced. The president stated that he could use the proxy votes to approve or disapprove a painting assessment. Is this legal?
A: The annual meeting agenda should state any items that will be voted upon at the meeting. In my opinion, it is improper to vote on any additional matters.
It is permissible for the painting assessment issue to be brought up during discussion, but the vote should have been postponed until all owners could be informed.
Remember that in California the association's board of directors has the authority to approve special assessments without a vote of the membership unless the special assessment exceeds 5% of the current annual assessment.
If the painting assessment is less than 5% , the vote at the annual meeting was unnecessary.
Special Assessment by Board Protested
Q: In 1983, our homeowner association passed an amendment that states that a special assessment greater than $100 per unit per calendar year must be approved by at least 51% of the total membership.
The board recently approved a special assessment of $155 per unit without a vote of the membership. The purpose that the money will be used for is not an emergency. The association has $100,000 in the reserve fund. Can the association legally approve this special assessment?
A: The California Civil Code supersedes the amendment that you describe. However, the code states that if the special assessment is greater than 5% of the current annual assessment, then the membership should have voted on the matter.
The association has $100,000 in the reserve fund but you haven't told me whether a reserve study has been done. Perhaps $100,000 is far below the amount needed for maintenance and repair. Obviously, the board of directors feels that the current reserve fund is inadequate, so they approved a special assessment.
I doubt if the board would have voted for it without thorough discussion and study. Board members do not like passing special assessments because they know that they may be criticized for improper budgeting in previous years.
From the information that you have given me, I would say that the board deserves your support for increasing the reserves before an emergency arises. If a reserve study has not been distributed to all the owners, then you have the right to question the board's action.
California law requires homeowner associations to prepare a reserve study that identifies the major common area components and the cost of future repair and replacement.
Clarifying Terms of Office for Directors
Q: I would like to comment on your answer to a question regarding the term of office for directors. which appeared in your column on Sept. 23. Effective Jan. 1, 1980, the California Nonprofit Corporations Code specifies a maximum term of three years for directors of membership corporations.
A: The headline for the question that you cite, "No Laws to Restrict Term of Directors" was misleading.
The current Nonprofit Corporations Code states that the term of office for directors, not longer than four years, shall be as stated in the association's articles or bylaws.