Melissa Doolan, Esq. shares her insights in this featured article, republished from HOAleader.com.
An HOAleader.com reader asks: “This year, our association had an annual meeting via mail-in vote. The ballots where due the day before the vote-counting day. During this meeting, we had volunteers help count the ballots. Our secretary wrote our minutes.
However, there wasn’t one mention of the members of the association who took part in the vote count. I’ve asked to have the minutes edited to include the members who help with the vote count. The secretary refuses.
Prior to the meeting, I also asked (being on the board) who was going to do the vote count. I was denied knowing who was counting. I wasn’t in attendance of this meeting in person but did participate via conference call.
This brings me to another concern. The secretary refuses to put my name on the list of board members who participated. After this meeting, the secretary retired. However, she still provided the minutes but said we must accept them as written and is unwilling to edit them. As a board, can we edit the minutes ourselves?”
Our experts say—at least indirectly—that it’s good this secretary has retired. “That seems ridiculous,” says Janet Oulousian Aronson, a partner at Marcus Errico Emmer & Brooks in Braintree, Mass., who is licensed in that state, in addition to Rhode Island and New Hampshire.
James R. McCormick Jr., CCAL, a partner at Delphi Law Group in Carlsbad, Calif., who has represented association clients for nearly 30 years, has a similar thought. “This question, while multilayered, leads me to say that whoever is serving in that role as secretary in the reader’s question needed to be removed and replaced with someone else,” he says. “This person apparently didn’t know what they were doing and was being obstinate.”
Here’s why they and other experts say this secretary was off base.
Adding Who Counted the Ballots
Let’s take each of the three questions separately. First: Should the secretary have added to the minutes who counted ballots? That depends.
For instance, with California’s requirement for election inspectors, that information is probably out there for members to know already, so what’s the harm in including it? “For most elections, for annual meetings, anyway, associations are required to hire an independent inspector of election,” explains McCormick. “That inspector is required to do a bunch of things, including prepare a report.
“So our state is a little different from that standpoint because it’s known who those people are,” he adds. “They can be volunteer poll workers or homeowners. And generally speaking, you’d want to know who those individuals are because if there’s a legal challenge, that person is going to be brought in. So refusing to put that information in is asinine.”
Even though laws in the New England states in which she practices don’t have that same requirement as California, Aronson agrees. “If I had people counting the ballots, I’d identify them,” she says. “Why wouldn’t you? The whole point is to give credibility to the vote. That’s part of the certification process.”
That’s also important information to have readily available in case there’s a later election battle. “Maybe you want to talk about who counted the ballots in case you’re involved in litigation later on and you need to know whom to call as witnesses,” says Melissa S. Doolan, an attorney at The Travis Law Firm in Phoenix, who has represented community associations for the last 15 years.
Should You List People Present?
This answer is of course you should say who was at the meeting, especially board members. “That’s a given,” says Aronson. “At a minimum, you’d identify who’s in attendance at the meeting and matters decided and actions taken, meaning whatever is decided and voted on.”
The list of those present sometimes comes in the form of an attendance list. “I do want an attendance list,” says Elina Gilbert, CCAL, a shareholder at Altitude Community Law in Lakewood, Colo., who has specialized in community association law for 24 years. “If it’s a board meeting, you can put in the minutes the board members who were present. If it’s a homeowners meeting, you could attach a list. If someone challenges that quorum was met, you show the minutes or the signup sheet attached to the minutes.”
McCormick agrees. “When it comes to not including board members who attended, that’s interesting,” he says. “An annual meeting isn’t a board meeting; it’s an annual meeting of the members. If we want to note every member who attended, we can attach a sign-in sheet. If it’s a board meeting, absolutely you’d list the board members who attended.”
There’s a very simple reason you’d want to include that information. “You have to show what board members were there,” says Doolan. “Otherwise, how would you prove you had a quorum at a board meeting if a challenge later arose?”
Ditto for any annual members’ meeting at which there was a vote on any issue. “If you’re at an annual meeting, I don’t think you have to restate every owner who attended,” she says. “You’ll have attached to your minutes all of the 50 or however many ballots received and the meeting sign-in sheets. If nothing was voted on at the member meeting, it wouldn’t matter who was there so you wouldn’t need to show quorum.”
Who Decides What’s in the Minutes?
It’s absolutely, positively the board’s prerogative what to include in the minutes, no matter what state our experts are from.
“Usually, the minutes are prepared by the clerk or secretary,” says Aronson. “If they’re not approved, they’re amended. That’s the board deciding whether the minutes are acceptable or need amending. It’s not that person’s decision or the highway. The majority of the board decides whether they’re an actual representation of what was decided.”
Doolan agrees. “In Arizona, there’s a motion to approve the minutes,” she explains. “Someone on the board can move to amend the minutes to reflect what really happened, and then the minutes would be revised before approved. So the board can amend them before they’re accepted.”
That’s also the practice in Colorado. “It’s not the secretary’s decision,” says Gilbert. “Someone takes the minutes, and then it’s the board’s collective decision on what the board wants and doesn’t want in the minutes. The secretary doesn’t have sole rights.
“I want to see all motions made, all seconds, and all vote results,” she adds. “The minutes are so you have a formal record of corporate decisions—not anything else. For me, less is more.
“Also, I always recommend that if you’re not sure what to put into the minutes, consult with your legal counsel,” suggests Gilbert. “That way, if someone challenges you about what you included, you can say you got a legal opinion.”
All of this makes total sense considering that if you’ve got a management company, they often do the job of recording minutes but then present them to the board for review.
“It’s not accurate that the secretary decides,” says McCormick. “In California, more often than not, the minutes are taken by the management company and on the agenda the next meeting for board approval. If it’s a member meeting, the members need to approve the minutes. Whether it’s a member or board meeting, that group can say the minutes need to be fixed.”