Ask the Attorney by
This column is comprised of questions that have been posed to me by homeowners, property managers and related professionals regarding legal issues that they have encountered with respect to their associations. Discussion of these questions, as well as prior questions, can be found on the CAI-MN LinkedIn page: www.linkedin. com/groups?gid=1769135
Q: A:
We have a board member who sometimes travels for work. If he is away, can he attend a board meeting over the phone? Or via email?
Most associations are governed by the Minnesota Nonprofit Corporation Act (found in Minn. Stat. §317A). The requirements of Board meetings are detailed in 317A.231. Subdivision 3 states that: A director may participate in a board meeting by means of conference telephone, or, if authorized by the board, by such other means of remote communication, in each case through which that director, other directors so participating, and all directors physically present at the meeting may participate with each other during the meeting. Therefore, by default a board member may appear by telephone. If the board allows, a director may appear via other means, provided that all directors can still participate in the meeting. This would allow the use of a technology such as Skype to be used for a traveling member. The provision that each director be able to participate with each other during the meeting would exclude the use of email or text messages as a form of attendance, as they would not provide for simultaneous participation.
Nigel H. Mendez, Esq. | Carlson & Associates, Ltd.
Q:
We have a board member who was recently divorced. He provided his ex-wife with a quitclaim deed and moved out of the association. His ex-wife wants the board to remove him from his position on the board. Do we have to do that? If so, how?
A:
Interesting situation! Your bylaws will hold the answer. The bylaws provide the requirements for being a director. If ownership of a unit in the association is one of the criteria, then it is a simple answer — yes, he should be removed as a director as he no longer has an ownership interest in the unit. If the bylaws do not require ownership, the answer is a little more complex. As you will recall from a previous column, the directors are elected by the homeowners, and the officers (president, secretary, etc.) are elected by the directors. Officers can be removed or replaced by a majority of the board at any time (provided your bylaws don’t require cause). An officer who is stripped of a position remains on the board as a director at large. In order to remove a director from the board, there must be a violation of the eligibility requirements of the bylaws, or a vote of the membership. Many associations have ongoing requirements of their elected directors. Some common ones are attendance at board meetings (must attend at least 3/4 of the meetings each year, etc.) and remaining current with their assessments. If a director fails to meet ongoing eligibility requirements, they can usually be removed by the other directors via a simple majority vote of the board. If the director in question meets all requirements of being a director, you will have to turn to the membership to decide if he should be removed. Unless your bylaws provide differently, directors who were elected by the members are removed by a majority vote of the members. Minn. Stat. 317A.223(Subd. 4). A special meeting of the members will need to be called in accordance with your bylaws.
To have a question answered in a future article, please email it to me at nmendez@carlsonassoc.com with the subject line “Ask the Attorney.” While I can’t promise that all questions will be answered, I will do my best to include questions that have a broad appeal. Questions will also be answered by other attorneys practicing in this area of law. The answers are intended to give the reader a good understanding of the issue raised by the question but are not a substitute for acquiring an opinion from your legal counsel.
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Minnesota Communit y Living