OVA’s Bylaws haven’t been updated since their inception in 1964. For several reasons they badly needed updating. In 2018 the board, closely overseen by board vice-president Tom Kendrick, created a Bylaws Revision Committee (BRC), consisting of Chairman Dennis Boaz, Joe Henderson, Herm Hermann, Wally Schilpp, Lynda Oneto, and myself. Tom Kendrick was the board liaison, who would provide the board’s perspective as we went along. Dennis, Joe, and I were attorneys, and felt comfortable with the many legal issues involved. We met bi-weekly from June 2018 to about June 2019. We thought our proposals might be a real contribution to OVA, and we were motivated.
As for getting these proposals adopted, we agreed Article XI, the bylaw regarding how to amend the bylaws, was a problem. It states the bylaws could only be “adopted, amended or repealed either at a regular or special meeting of the members at which a quorum is present, either in person or by proxy, by a majority of the voting power of the Association voting either in person or by proxy…” The post-1964 law governing California HOA’s, the Davis-Stirling Act, superseded that bylaw, barring the use of proxies to vote, and required secret mail-in ballots. To deal with this, we interpreted this bylaw as requiring at least half of OVA households to vote by secret ballot in favor, for an amendment to be adopted. This meant that half of OVA’s approximately 3240 households would have to vote in favor of any amendment for it to be adopted. The problem is that OVA gets about a 45% turnout, and we need double to reach a “quorum and adopt amendments. This is near impossible without a Herculean door-to-door effort.
The BRC decided to recommend that the board start by submitting only Article XI for amendment to the members, to a lower, more achievable, voting threshold. If that succeeded, the board could submit other proposed revisions to the members for a vote, with a better chance of success. After much discussion we proposed a revision to Article XI that reduced the quorum to 25% of households, and a majority of those would have to vote in favor. There were no other substantive revisions proposed, except to delete reference to proxies, and authorize secret mail-in ballots. If that proposed revision was adopted, the board could then offer the other proposed revisions to the members in a subsequent election.
The BRC sent its packet of proposed revisions to the board in May, 2019. (See Oakmont Forum: Proposed Bylaws Amendments from the BRC for a summary and for links to the Board Meeting Packet that contains the BRC delivery.) At the October 20, 2020 board meeting, Tom Kendrick submitted a resolution to the board that amended the start of Article XI to state, “These bylaws may be amended by approval of the Board and the affirmative vote of a Majority of a Quorum of at least 40% of the OVA Voters.” There were other amendments to this bylaw and to our Protective Restrictions, that gave the board the power without a vote of the members, to amend those two governing documents to bring them into conformity with applicable law and into conformity with each other.
The increase of the quorum was expected, but what was truly shocking was the deletion of “at a regular or special meeting of the members,” and the insertion of “by approval of the Board and… “The effect of these changes was to take away the power of the members to hold a special meeting to revise the bylaws on their own, and only make it possible if the board approved. Article XI provided a democratic way for members to be a check on the board, but this proposal took that away. Tom attended all the BRC meetings, knew our thinking on this, but said nothing. This was a power play, pure and simple. I objected to Tom about the change, and his surprising response was “This is not explicitly in our bylaws, so I cannot tell you where that concept originated.” Nevertheless, he staunchly defended the changes.
I notified other former BRC members (the committee had been dissolved) what was happening. Some of us were burnt out after a solid year of working on bylaws, but those who responded (Joe, Wally, Herm) agreed the proposed revision was unacceptable. We engaged Tom in further dialogue, attempting to discuss the issues, and asking for the removal of the offending language.
Tom steadfastly held to the position that the board should have this power, and the members could not be trusted. In one email, he said,
“I think having the possibility of amending OVA bylaws without BOD input or legal review is a very questionable idea. The Board is charged with oversight of the corporation, and allowing the governing documents to be manipulated without board involvement seems irresponsible.”
Of course, the board should only have such plenary power and responsibilities if the members want them to have it, but it became obvious further exchanges would not be fruitful. We thought most OVA members believe that ultimate power in our association should vest with the members, not the board, so we ended our dialogue with an email from Joe Henderson, Wally Schilpp, Herm Herman and I, that if the board submitted this to the members, we would actively oppose its adoption.
In December 2020 Tom withdrew his proposal, with an explanation that I thought was notable for its failure to address the true issues, and its attempt to shift the blame to the BRC. The resolution stated:
This resolution withdraws the earlier proposal for a community vote seeking to simplify and reduce the barriers for amending the OVA Bylaws.
“Whereas ongoing discussions of this potential upcoming vote are no longer sought by members of the former Bylaw Revision Committee, and
Whereas there has been substantial confusion and misinformation contained in public communications regarding the content and effect of the proposed bylaw amendment,”
After Tom termed out, and Mark Randol was President, I asked Mark how he felt about the board having to approve any meeting of the members to revise the bylaws, and he agreed with Tom. Last year, a board member offered to revive the issue, but it was put aside for other matters. So, at the moment nothing is happening. Perhaps a future board will see it differently, and if it does, a new BRC needs appointed, and this time to work with the OVA attorney.