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 It states the bylaws could only be “adopted, amended or repealed either at a regular or special meeting of the members at which a quorum is present, either in person or by proxy, by a majority of the voting power of the Association voting either in person or by proxy…” The post-1964 law governing California HOA’s, the Davis-Stirling Act, superseded that bylaw, barring the use of proxies to vote, and required secret mail-in ballots.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.

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5 Comments

  1. john MacInnis on February 11, 2024 at 9:07 am

    Thank you Mr Helm for a very concise, factual, eloquent and knowledgeable first hand summary of the “actual” reasons for the outcome of the 2018-2020 BRC efforts. Your participation in the BRC, no matter what the outcome, was/is a refreshing example of why we, if possible, need to be involved in our community.

    PS: For many of us who questioned previous OVA Board’s actions/non actions on bylaw (and possibly CCRs) issues, Hugh’s explanation will hopefully convince the 2024 OVA Board to consider an appropriate bylaw change proposal for consideration to the full OVA membership.

  2. Jim ritter on February 11, 2024 at 10:46 am

    Thank you Hugh for all the time and expertise you donated.

  3. Yvonne Frauenfelder on February 11, 2024 at 10:47 am

    John MacInnis, in his customary well considered and most eloquent words, said it all.

    Suffice that I second his hopes that the 2024 Board will, without delay, initiate the complete updating of OVA’s Bylaws, created in 1963/64 and worked on last in 1992.

  4. David Simpson on February 11, 2024 at 9:29 pm

    Thank you, Hugh. I’m a new OVA resident (also, like you, a retired attorney) and, while I’m not new to HOAs, it is shocking to hear the former Board Pres (and current candidate) characterize member efforts to update/modify their association’s bylaws as manipulation. I hope a new Board breaths new life into this effort.

  5. Don McPherson on February 19, 2024 at 3:00 pm

    For those interested enough to take the time to examine the record of the Board’s withdrawal of the Bylaws amendment from membership voting — and the critical views of the former members of the BRC — in order to draw their own conclusions:

    – Board Video 10/20/2020 Meeting AT 1:21:08 to 2:00:30
    https://oakmontvillage.com/article/10-20-2020-board-meeting/

    – Hugh Helm Nextdoor OVA/BOD Discussion Oakmont Village Post 4 Dec 20
    Proposed Amendment to OVA Bylaw 11.1 re amending bylaws.

    The following email was sent today to the OVA board. If you agree, please let the board members know how you feel. Dear OVA Board Members: We, the undersigned, are former members of the Ad Hoc Bylaws Revision Committee (BRC), and are now emailing each of you to register our objection to a critical change the OVA board made to Bylaw 11.1 (10.1 in the BRC’s proposed revisions). This is the Bylaw amendment that sets out how the Bylaws may be amended, and the one the OVA members will soon be voting on. Current Bylaw 11.1 starts with introductory language unchanged since its inception: “The bylaws of this Association may be adopted, amended or repealed either at a regular or special meeting of the members . . . ” This language was not significantly changed by the BRC, which proposed: “The bylaws of this Association may be adopted, amended or repealed at a regular or special meeting of the members . . . ” But ,at its October 20. 2020 meeting the Board changed this language to read: “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. . .” . . ” The added language “by approval of the Board and” radically changes the way the bylaws can be amended. From the beginning of OVA, the members have had the independent power to amend the bylaws. But with your added language, the members will lose that power, and the bylaws will also require approval by the Board. This will be seen as a power grab by the Board and is the reverse of what was a primary goal of the BRC: to make Oakmont Village more open and democratic, and to make the Board more answerable to the members. Our proposed revisions are on the whole an effort to give the members the power to control their own future, rather than being herded like sheep. If the Board does not delete the offending language from its version of this bylaw and the proposed ballot language, we will have no choice but to oppose this amendment and advocate that members should vote against it. . We do not take this position lightly, and we are not contrarians who snipe from the sidelines. All of us have rolled up our sleeves and gone to work on behalf of OVA in various ways, to improve the quality of life of our members. All of us are knowledgeable of OVA’s history, traditions, and values, and have lived here many years. We are all current members of the Oakmont Community Development Committee, and in the past, we have variously been OVA board members, officers, committee chairs, and volunteers for OVA in various ways. Two of us are retired attorneys. We strongly urge the board to reconsider this amendment and drop the offending language. We can then join you in supporting this amendment and work with you to get it passed.
    Respectfully,
    Wally Schilpp
    Herm Herman
    Hugh Helm
    Joe Henderson

    – Board Video 12/15/2020 Meeting AT 58:51 to 1:20:45:
    https://oakmontvillage.com/article/12-15-2020-board-meeting/

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