HOA Nomination Committee, What Does it Do?

HOA Nomination Committee, What Does it Do?

Question: Can an HOA board or HOA Nomination Committee determine who can and cannot run for election to the board?
    Answer: It depends on whether the Bylaws give the board that authority.

Question: Can an HOA board or Nomination Committee determine qualifications for a candidate to be able to run for the board?

     Answer: No. Not unless the Bylaws specifically give the board that special authority.

In order to determine if my answers are correct, we need to,

  1. examine the Bylaws of the association, and
  2. examine the laws.

The Law

HOA Nomination Committee, What Does it Do?
HOA Nomination Committee, What Does it Do?

There is no reference to “qualifications of directors” in Title 33, the Planned Community Act; so we now turn to Title 10 Section 3802 for Non-Profit Corporations.

ARS 10-3802. Qualifications of directors

“The articles of incorporation or bylaws may prescribe qualifications for directors…”

Therefore, the law seems clear to me that an HOA board cannot determine qualifications for directors. Any required qualifications must be in the Articles of Incorporation or the Bylaws; and only the association members can amend or add qualifications to those documents.

The Association Bylaws

Below is a section from Article IV Section 1 of an associations Bylaws. The first sentence lists a qualification; however, it is a rather broad qualification. This one allows the association to elect directors who are members and non members. Some associations don’t allow non-members to serve. Therefore, in those latter associations a candidate must be a member to qualify as a candidate for the board of directors.

ARTICLE IV

BOARD OF  DIRECTORS;  SELECTION; TERM OF OFFICE

Section 1. Number. “The affairs of this Association shall be managed by a Board of Directors, who need not be Members of the Association…”

Below is Article V of the same set of Bylaws:

ARTICLE V

NOMINATION AND ELECTION OF DIRECTORS

Section 1. Nomination. “Nomination for election to the Board of Directors shall be made by a Nominating Committee. Nominations may also be made from the floor at the annual meeting of the Members…”

“…The Nominating Committee shall make as many nominations for election to the Board of Directors as it shall in its discretion determine, but not less than the number of vacancies that are to be filled. Such nominations may be made from among Members or non-Members…”

Those Bylaws call for the board to establish a Nomination Committee to nominate candidates for board seats that are up for election. The Nomination Committee must nominate at least the number of candidates to fill the number of seats up for election, but they can nominate as many candidates as they desire.

Question: Does that mean that only the candidates the Committee nominates can run for the board?

Answer: In my opinion, the answer is no, because these Bylaws also allow nominations to be made from the floor at the annual meeting of the Members.

HOA Nomination Committee, What Does it Do?

Answer:  I believe the purpose is to locate people willing to run for election to serve on the board. However, if the Bylaws list qualifications, the Nominating Committee need to determine if the candidates meet those qualifications.

California HOA law doesn’t allow nomination committees. Many other associations have stopped using those committees.

In this blog site, I offer my layperson interpretation of the law and governing documents. All board members should have a working knowledge of the planned community laws and association’s governing documents. Then they can make proper decisions without an attorney present at every meeting,.

The laws are written so the layperson can understand and apply them. However, if there are differing opinions among directors, then it’s time to get a professional opinion.

Jonathan Olcott of” Phil Brown and Jonathan Olcott” law firm generously provided the statement below. The statement is for information purposes only, and should not be taken to be a legal opinion. Jonathan stated:

“This is a challenging question. The statute below (ARS 10-3802) can be persuasively interpreted to mean that qualifications can only be in the Articles or bylaws.

Some might argue that the Board can use its rule making authority to enact additional qualifications. I do not find that persuasive. Especially if there are qualifications in the Articles or bylaws (generally being an Owner and sometimes being in good standing).

I’m not an attorney, but I agree with Mr. Olcott’s statement. That’s because rules are to explain and clarify CC&R’s; but cannot add to, delete, or alter a covenant. Therefore, I don’t believe a qualification can be “added” to the Bylaws by an HOA board, or Nomination Committee. I believe that only the association members can amend the Bylaws to add qualifications.

BOOKS by CAPTAIN BILL TRAVIS

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