Suitable Participation

By Betsy Barbieux, CAM, CFCAM / Published February 2018

Board member complaints like these are too frequent:

The president won’t let me put an item on the agenda.

The president doesn’t let any of the other board members know when he has signed a contract.

The treasurer won’t give me a printout of the general ledger.

The secretary won’t let me see the minutes until after they are approved.

At the meeting, the president decides to add/delete agenda items.

The treasurer says I can’t have a list of the delinquent accounts.

The president made the decision to remove trees and didn’t tell other board members or get a vote.

One of our board members has missed 10 meetings. What can be done?

Before the meetings, we don’t get supporting documentation of the items on which we are required to vote.

       Eventually these frustrated board members ask, “What rights do I have as a board member?”

       While the statutes are fairly clear about the rights of an owner in a community association; and while there are laws for notice requirements, quorums, and voting at board meetings; the statutes lack procedures for how a board actually operates. That is, how does a board go from identifying a need—to contract for services, move funds, review violations, impose fines, develop disaster plans, or other issues or concerns—to getting it onto the agenda, making the decision, and following through.

       First, let’s review the primary purpose of all Florida community associations. You’ll find this purpose stated in the Articles of Incorporation and perhaps the Declaration. In cooperatives, you’ll likely find this purpose in the Articles of Incorporation or Master Proprietary Lease. The primary purpose of your community association is to protect the property and its value, provide for the maintenance of the common elements and property, and enforce the restrictions contained in the governing documents. The association is also responsible for the operations (meetings and finances) of the corporation. You may find some specific association powers outlined in your Articles of Incorporation or Bylaws. In corporate law, a corporation’s purpose is carried out by its board of directors who are elected by the members of the corporation. You’ll find the powers of your board of directors in the Bylaws and also in Chapter 607 or Chapter 617. Board members are elected by the membership; officers are elected by the board members.

       Officers of the corporation (president, vice president, secretary, and treasurer) carry out policies established by the board of directors and provide administrative functions for the association. Often the duties of the officers are delegated to a manager or management company by contract. Officers may delegate their duties, but they may never delegate their responsibilities. The directors and officers have a statutory fiduciary duty to the members of the association.

       This is pretty much where the statutes and documents leave us, with not much more direction to the board of directors as to how to function before, during, and after a meeting.

       The only other piece of information we might gather from the documents is a paragraph that states something like this: “The conduct of all meetings of the membership, board of directors, and committees will be based on Robert’s Rules of Order, latest edition.”

       So, tag, General Henry Martyn Robert, you’re it!

       General Robert wrote his original book, Pocket Manual of Rules of Order for Deliberative Assemblies, in 1876. The purpose of his book was to offer procedures that would bring decency and decorum to meetings of large groups of people!

       The book is still widely in use today though it has since undergone many revisions. We call his guidelines for conducting meetings “parliamentary procedures.” They are not parliamentary laws. It is then a challenge to blend the Florida statutory laws for board meetings with parliamentary procedures.

       Most of the procedures in Robert’s Rules of Order (RRO) are overkill for conducting membership meetings needing to use only one or two types of motions and other procedures. We can address those procedures in another article. This article will concentrate on help for our elected boards of directors. RRO also provides Procedures for Small Boards, boards with members of 12 or fewer. These are the relaxed procedures our boards of directors should be following. These are some distinctives:

• There is no need to come to the meeting with a “prepared” motion or present the motion at one meeting and wait until the next meeting to vote on it. Such practices may work for other types of organizations, but are counterproductive for us. So many times, board members don’t know if action is needed on an agenda item until they engage in pre-motion discussion! Then it takes a sharp chairman or other board members to move that pre-motion discussion along into a motion—or not—and move on to the next agenda item.
• Directors are not required to stand before speaking or obtain the floor before making motions.
• There is no limit on the number of times a member may speak in debate on a question. Motions to limit debate are not usually appropriate.
• Discussion of a matter is allowed before a motion is made.
• The president of the board may speak in debate without rising, may make motions, and does vote on all questions unless there is a specific conflict of interest.

       Board members should be reminded of the basic rules of parliamentary procedure. These include the following:

• The rights of the organization supersede the rights of the individual members. Should a conflict arise between a member’s right to speak and the association’s right to conduct its business, the right of the association prevails.
• A quorum must be present to call the meeting to order and to conduct business. Usually the quorum for a board meeting is a majority of the board members.
• One question at a time and one speaker at a time. Manners are the order of the day. Remember to bring yours to the meeting.
• Personal remarks in debate are unacceptable, and the president should immediately (and forcefully, if necessary) rule them out of order.
• Abstentions are for asserted conflicts of interest where a board member has a financial or ownership interest in the matter being discussed. The abstention and reason for it are written into the minutes. That board member may or may not leave the table. Abstentions on general principle are inappropriate.
• Open forums allowing owners to speak on any issue of concern are inappropriate during the formal board meeting (though they may speak on agenda items). This type of comment should be heard before the meeting is called to order or after adjournment, and a quorum of the board should not be present.
• Owners have the right to audio or video tape meetings of the board based on policies set by the board and rules in the Florida Administrative Code.
• A vote cast by each board member must be recorded in the minutes. This means the board president does vote unless he or she is abstaining because of an asserted conflict of interest.

       You can find throughout RRO the expectation that the board of directors will be a deliberative group. That would seem to indicate group decisions, not individual ones. The board may certainly designate another board member to be the point or contact person for a particular issue or task, but any decisions identified by that board member must be made by the board of directors at a properly noticed board meeting.

       It is expected that board members will fully participate (with Florida law allowing their participation in person or by speaker telephone or real time electronic or videoconferencing). Board members need to commit to attend the meetings. Proxies are not allowed.

       Since a quorum of Florida board members may not meet except at a board meeting, each board member should have equal opportunity to add topics to the agenda. The board member adding a topic should also provide all supporting documentation ahead of the meeting. Any president (or manager) who holds the agenda hostage is being inappropriate and unprofessional. That person is likely not acting in the best interest of the corporation.

       In order to fully participate, board members should be informed before the meeting of all business to come before them for consideration. The board needs a deadline for adding topics to the agenda, and a timeframe several days before the meeting within which to receive all supporting documentation, the agenda, and the previous meeting’s minutes.

       Our Florida statutes require an agenda be published at least 48 hours ahead of the meeting with all agenda items specifically designated. That means there is no “Other” business brought up at the end of the board meeting. The statutes for homeowner associations are not as clear regarding the agenda, but they would be wise to follow the same procedure.

       The statutes require the board to allow members to speak to any specifically identified agenda item. The challenge for boards is to create and implement consistent policies for when owners make those comments, how they identify themselves as wishing to speak, how long they may speak, and where they stand to address the board of directors.

       In order to be a deliberative group, the board of directors is seated so they are looking at each other rather than the members present. They should be seated in a circle or at U-shaped tables, so they are able to make eye contact with each other. Eye contact with the audience is not necessary.

       Once a decision is made, the entire board of directors needs to support that decision. Whin-ing, complaining, and nay-saying are totally inappropriate.

       Before board members move on from that agenda item, they need to decide if follow-up is required, who is responsible for follow-up, and whether that item needs to return to the agenda for the next meeting.

       Some board presidents believe they are the CEO of a corporation and can make unilateral decisions. Unilat-eral decisions are not contemplated in the statutes. Everything is to be decided by a board vote—it is a deliberative group. If other board members want to give the president or another officer decision-making latitude on certain matters or a maximum she can spend without a board vote, they may vote to do so. However, that officer needs to keep the board informed and should not take it upon herself to hijack all decision making. At some point, there should be a board meeting to ratify the actions taken by those officers.

       The board of directors is a deliberative group and can and should be adequately prepared in advance for suitable participation. 

Betsy Barbieux, CAM, CFCAM

Florida CAM Schools

Betsy Barbieux, CAM, CFCAM, guides managers, board members, and service providers in handling daily operations of their communities while at the same time dealing with different communication styles, difficult personalities, and conflict. Effective communication and efficient management are her goals. Since 1999, Betsy has educated thousands of managers, directors, and service providers. She is your trainer for life! Betsy is the author of Boardmanship, a columnist in the Florida Community Association Journal, and a member of the Regulatory Council for Community Association Managers. For more information, contact Betsy@FloridaCAMSchools.com, (352) 326-8365, or www.FloridaCAMSchools.com.