Should Management Contact Attorneys; Officer Terms

Kelly G. Richardson, Esq. CCAL, HOA Homefront Column

Dear Mr. Richardson -

In reading a recent column, you mention that most HOAs don't allow homeowners to contact the corporate attorney to keep a lid on costs.  Entirely appropriate, in my view. But it brings up another related issue. The board is in charge of legal affairs, so what are appropriate restrictions on management staff contacting the attorney? Should all inquiries to the attorney be routed through the board, the board president or the managing agent? J.H., Seal Beach

Dear J.H.: Management staff are trained to recognize legal issues and should be expected to alert legal counsel as soon as they arise. Managers also are usually able to relay questions more efficiently to the attorney. Restricting managers from contacting legal counsel often creates inefficiencies, because at some point the lawyer needs background information from the manager that may affect the attorney’s answer. Also, managers hopefully have sufficient training that they recognize legal “red flags” that the average volunteer leader may not see. So, I prefer to have TWO points of contact – one person from the Board and one person from management. That way no one person, volunteer or paid, controls the flow of legal advice. Also, consider copying the board on questions to counsel so responses can be provided to the entire board, not just the contact person. Your lawyer works for the HOA, not the manager or the president, so it’s better to keep the entire board informed.

Hoping this helps, Kelly

Question: During the annual meeting in which the board election is taking place do the current board positions like president have to be reelected if their term isn't up? J.K., Santa Barbara

Dear J.K.: Normally board officer positions are reviewed after each annual meeting when new directors are elected. Your bylaws probably say so, but you should check to make sure. So, yes, soon after the new board is elected there should be an election of officers. A common mistake HOAs make is to hold an immediate closed board meeting right after the election results are confirmed. Electing officers is NOT one of the few actions allowed in closed session – that must happen in an announced open board meeting. At least four days before the day of the election, well-run HOAs typically announce an agenda for a board meeting to occur right after the election, with the one agenda item being election of officers. That way the board complies with the Open Meeting Act.

Officer terms typically are one year but check your HOA bylaws to be sure. Officers serve at the will of the board of directors, so the board can at any time in an open meeting vote to change officers. The board does not need to state a reason for the change but only needs a quorum of the board to act, after posting the subject of officer positions review on the agenda for that meeting.

A common point of confusion is the difference between the position of officer and director. Normally directors are elected by the membership (unless the board is filling a vacancy) and the officers are elected by the board. If someone is removed from their officer position, if they remain qualified under the bylaws and election rules, they are still a director.

Best, Kelly