By Brian Nelson

The Marsh Creek Board of Directors, under the leadership of the president, Barbara O’Conner, has proposed sweeping changes to the Marsh Creek Homeowners’ Association Bylaws. The revisions, the first in 13 years, form a complicated grab-bag of amendments that have drawn opposition from three former Marsh Creek Board presidents (see below). Ballots were mailed to homeowners last week with minimal background explanation. Homeowners are expected to vote by-mail, or in-person at a Special Membership Meeting at 6:00pm, Wednesday October 7 (details below).

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The Marsh Creek bylaws form the community’s constitution, the fundamental rules and procedures required to conduct Association and community business. Many are largely pre-ordained by state law.

This report is based on a lengthy interview Sunday with the Board’s project leader, Brent Burkey, a former corporate attorney, and from opinions from three former Board presidents. The result is intended to plow through the legal thickets and offer homeowners additional guidance.

As to the origins of this initiative, Burkey began our discussion by explaining that last year’s (2019) General Meeting and Board election presented the community with new challenges for which the bylaws were unprepared. He specifically mentioned one candidate’s door-to-door campaigning. While no bylaw change has surfaced here to address that particular issue, the bylaw committee unearthed a trove of other items it felt needed changing.

Below are the highlights.

Quorum Reduced From 30% to 15%

At first glance, this proposal appears to wave a white flag at community apathy and indifference, often on display in poorly attended General Meetings. Brent Burkey chuckled when he heard the “white flag” analogy. After pausing, he replied, “just the opposite”.

He maintained that Marsh Creek ranks higher in participation and turnout than other communities its size. He then turned to the substance of the change with a surprising claim.

“It (30% to 15%) is really an increase (in voters) from 1 to 95, or 15%”, he said, in a comment that helps explain why our interview lasted 90 minutes.

The “95” figure represents his numerical equivalent for 15% of Marsh Creek homeowners. “And it doesn’t apply to anything other than directors”, he said.

Burkey went on to explain that although 30% of homeowners must attend to constitute a quorum at an Annual or General meeting, there is currently NO minimum to elect a Board member at that same meeting. Even a single homeowner could meet the required minimum to elect Board members, even while all other business at the meeting is shut down for a lack of quorum.  The loophole, he said, is common to many homeowner associations to insure continued governance, even with the barest of community support.

Asked why, if the Board felt strongly enough to maintain the 30% minimum for General and Special Meetings, it didn’t also aim for 30% for a legitimate Board election?

“You’re setting up for failed elections and hold-over directors”, Burkey went on. “More is better if you can get more, but not if you fail. It’s a balancing act. You don’t want to set bar so high you have failed elections and hold-over directors. 15% may still be too high”.

Hold-Over Directors

Yet, the Board is nonetheless prepared to have the hold-over directors it says it doesn’t want.

Among changes elsewhere in the amendments package: if three Board vacancies need to be filled, for example, and there is a failure to attract a 15% turnout (i.e. 95 M.C. homeowners), the Board then faces the prospect of being unable to hold a Board election. A proposed amendment seeks to retain the existing Board members as “hold-overs” until the next election, one year from then.   

Asked why no new companion bylaw was proposed to force a new election the following January, one month later, if such an event occurred, Burkey replied, “The Board can do so if it feels it can be successful, but didn’t mandate it in case Covid wiped out the world by January. The Board has the discretion, but it is not mandated”.

Ending the Proxy Vote

Currently, a proxy vote is permitted for both Board elections and for issue-specific votes like these proposed bylaw changes. Homeowners can “name” a proxy, that is, appoint a specific individual to vote on their behalf. Or they can sign and leave the proxy vote blank, effectively giving their vote to the Board president, who is set as the “default proxy”.

The Board signals it wants to end the proxy vote for Board elections. Burkey claimed it confused some homeowners.

In 2019, “it was used by 10 out of 330 people”, he said.  “A no-brainer, a fix doing no harm.  Only one person named a proxy, nine failed to name someone”.

Two former presidents oppose the removal of this provision, citing (see below) the trust some homeowners place in individuals more knowledgeable about community affairs to vote on their behalf.  In response to these critics, Burkey advised future bewildered homeowners to telephone their trusted friend, seek those recommendations, and fill out and mail in the secret ballot themselves.   

Outreach Committee

The Board wants to remove the “Nominating Committee” from the bylaws and rename it the “Board Outreach Committee”. The new body would retain the mission of identifying homeowner expertise and talents needed for community affairs. Yet it is unclear from the Board’s handout if, and how, the new committee would differ in either mandate or selection criteria from the old one.

Burkey sought to dispel any suspicion the change represented a form of Soviet-styled political engineering with the use of closed door interviews and unspecified screening standards.

“It is not a restrictive gate,” he said. “It’s a search committee. Anyone who wants to, can run. Screening is a bad term. The Board wants contested elections”, he added.

Ending Nominations from the Floor

Eliminating nominations from the floor permits the Board to avoid staging a meaningless election at the Annual General Meeting if the number of qualified candidates who meet the proposed new 45-day nomination deadline equals the number of existing Board openings.

End of Vote Revocation

This bylaw change does away with a homeowner’s right to revoke a previously-cast secret ballot during a General or Special Meeting.

Ending vote revocation in theory eliminates a last-minute recourse, as does the end of floor nominations, arising from homeowner remorse for a previous mail-in vote. However, Burkey points out revocation is a practical impossibility now anyway, since those secret ballots, once received, have no identifying markings.

Why Call a Special Meeting in October?

“The Board wants to clear up problematic issues before this year’s election in December, Burkey said.

“We are not trying to rush this through. But since these are primarily election issues, we want them in place for this year, so we don’t run into any problems (from a) lower turnout due to Covid”.

Editor’s Note:

To approve the bylaw changes in time for the General Meeting in December, the Board has called a Special Membership Meeting at 6:00pm, Wednesday October 7, choosing as the venue the small Ladies Card Room of the Marsh Creek Country Club. It did not propose meeting in the Club’s more spacious dining room, customarily the setting for community-wide General Meetings, or alternatively, in an outdoor setting. In its homeowners’ packet, the Board acknowledged “attendance at the meeting may be more restrictive than usual” due to the Covid pandemic. It urged homeowners to mail in their ballots ahead of time.

Three Previous Board Presidents Respond

John Hutson

“I’d vote “no” on the whole package if for no other reason than the proxy issue”, he said. “If a homeowner is not well informed regarding the candidates, needs of the Board (i.e., what holes need to be filled–we need an accountant, a lawyer, an engineer, etc.), or issues within the community, or even geographic distribution (e.g., we have 6 directors from the Villas and none from south of Thunder Bridge), they should have the option to give their proxy to someone whose judgment they particularly respect and who knows those issues.  That proxy may not go to a director.  It may go to someone who they know will vote wisely and isn’t personally vested in the outcome–as are the sitting Directors now on this vote”. 

Neil Beck

“Members of the community often have no personal knowledge of the candidates, so they give their proxy to someone who does”, said former Board president, Neil Beck. “The Board is asking people to vote today on bylaw changes by proxy, but proposes to not allow the vote for candidates by proxy.  Makes no sense and takes away voters’ rights.  This alone causes my no vote”.

“In no scenario would I agree to hold over a Director whose term has expired”, said Neil Beck, the former president. “This is unprecedented in a democracy at any level. The Board has operated many times without a full complement of Directors and the Board already has a right to appoint (new) additional Directors when necessary”.

Ben Leaderman

“A flawed poorly drafted attempt to create a solution in search of a problem”, he said. “A document that invites debate with vague language open to interpretation and solves no existing flaws. The cost of the legal drafting of this document and refiling of bylaws is a waste of our assessment funds and irresponsible”.