Dave Weiland has carried out a nonstop campaign to make sure Snowbirds (members who have winter residences in Sun City) are not eligible to serve on the board. I find Mr. Weiland's apparent hatred of snowbirds sad and insulting. So, let's take a deeper dive on what I consider the most recent of Mr. Weiland's tricks to keep snowbirds off the board and see how tainted it really is and how it clearly violates the corporate documents. ARS Title 10 allows corporations to create classes of members with different rights and/or obligations. Cool, RCSC is allowed to create classes of members and exclude some classes of members from being eligible for running for the Board! RCSC Inc. has corporate documents which have the following order of precedence in the case of conflict: 1. Articles of Incorporation (AOI) 2. Bylaws 3. Board Policies The relevant sections of the AOI read as follows: 3. The Directors shall have the power to adopt Bylaws not in conflict with the Articles of Incorporation. 5. The Bylaws of the Corporation shall prescribe the qualifications of Members and the terms of admission to membership, provided that the voting rights of all Members shall be equal and all Members shall have equal rights and privileges, and be subject to equal responsibilities. Such Bylaws shall also provide the method for determining assessments to be paid by the Members. Ah Mr. Weiland argues that the directors have the power to prescribe the qualifications for being a director. For those that know how to read it is clear the qualifications for being a director cannot create unequal rights and privileges among members. Hmm, Mr Weiland must find that excluding snowbirds (40% of the Sun City members) from being a director is "reasonable" and does not violate the equal rights and privileges clause of the AOI. But let's dig a bit deeper into this diabolic plot to find out how the entrenched power mongers implement their vision to keep the evil snowbirds from having any real power over how their money is spent. (OK I will stop being so dramatic even though it was getting to be fun) Using their unchecked power to adopt bylaws, this board has adopted a new rule which requires a candidate for the board to "Reside in Sun City, Arizona and be physically in residence at least ten (10) months of the year. " WHAT????? I think someone forgot to take their meds when this was written. According to AI physically in residence means the person's body is in the residence and is generally measured in days and not months. This concept is used heavily in tax law and there are pages and pages of rules for how, among other things, dates of departure and dates of return are counted. Mr. Weiland, being a self-proclaimed legal guru without any legal training, was obviously aware of this and decided to create his own standard based on the standard being replaced "being available 10 months a year." Pure nonsense resulted. Just think about it - are all months treated equally? What if someone is present in their residence for part of a month? How does one prove they are physically in residence? Perhaps we should attach monitoring bracelets to board candidates? What happens if you are present for the months of July and August when meetings are not held and then absent for November and December when meetings are held? Have you met this "standard"? Let's turn now to whether this provision is "legal" under the AOI equal rights and obligations clause. I would argue the bylaw is clearly "illegal" because it conflicts with the AOI. Clearly, one's ability to run for a director position is an important right since all affairs of the corporation are run by the board. Then the next question to ask would be whether it is a reasonable restriction to require physical presence of the candidate for some period of time that is unclear how it is measured. What purpose does the physical presence requirement serve when the bylaws still allow remote participation in meetings and the liquor laws of the State of Arizona have allowed nonresidents to hold a Liquor license for some time. I think the answer is obvious. Exclude snowbirds. Two other interesting observations about these bylaw revisions. A convicted felon can run for the board so long as he/she is physically present in their residence in Sun City for "ten months". Would Steve Collins be eligible to run for the Board under the "Be willing and available to serve a full three (3) year term requirement?" (They struck the word eligible and inserted the word willing) I would argue that one who is by rule prohibited from serving a 3-year term cannot be considered available to serve that term regardless of the change. Just one man's educated opinion. I am sure Dave has a response to this.
Excellent John. Don't hold your breath waiting for a response from Dave. He has many opinions without having the facts to back them up!
One can only speculate John if this addition was a late bloomer based solely on who may have picked up a packet to run for the board. If so, perhaps we should dub this the "Fast Motion."
So John, just to lock the door on this... And...this is from Dave's precious ANCA, Chapters 24 to 40: 10-3802. Qualifications of directors The articles of incorporation or bylaws may prescribe qualifications for directors. A director need not be a resident of this state or a member of the corporation unless the articles of incorporation or bylaws so prescribe. And as you state from the RCSC Articles of Incorporation, Article VIII: 5. The Bylaws of the Corporation shall prescribe the qualifications of Members and the terms of admission to membership, provided that the voting rights of all Members shall be equal and all Members shall have equal rights and privileges, and be subject to equal responsibilities. Such Bylaws shall also provide the method for determining assessments to be paid by the Members. And we all know that the Articles of Incorporation supersede any Bylaw. Under ARS 10-3140, Definitions: 38. "Membership" refers to the rights and obligations a member or members have pursuant to a corporation's articles of incorporation and bylaws and chapters 24 through 40 of this title. I don't really see where the argument can be made that Snowbirds are ineligible to run for the Board?
Because our Articles of Incorporation says: "The Bylaws of the Corporation shall prescribe the qualifications of Members and the terms of admission to membership, provided that the voting rights of all Members shall be equal and all Members shall have equal rights and privileges,..." So, I asked AI if the Articles of Incorporation says all Members shall have equal rights and privileges, can the Bylaws make a qualification to run or serve on the Board of Directors that would prohibit that privilege? RESPONSE: No, the bylaws cannot impose qualifications for directors that would conflict with the equal rights and privileges granted to all members by the corporation's articles of incorporation. The articles of incorporation are the foundational, and superior, governing document of the corporation, and all bylaws must be consistent with them. Hierarchy of corporate governance documents Corporate documents exist in a specific hierarchy. When a conflict arises, the higher-ranking document prevails. State Law: This is the highest authority. The articles and bylaws must comply with the laws of the state in which the corporation is incorporated. Articles of Incorporation: As the "constitution" of the company, this public-facing document establishes the basic framework and must be filed with the state. Bylaws: These are internal rules that provide more specific procedures for how the corporation will operate, but they must align with the articles. How a director qualification could violate member rights A bylaw imposing qualifications for directors may violate the equal rights of members if it is interpreted as limiting a member's right to serve or be considered for the board. A right, not a guarantee: While all members may have the privilege to run for a director position, it does not mean every member is guaranteed a seat. Invalid qualifications: Bylaws that create qualifications so restrictive that they effectively bar most members from serving could be challenged as a violation of the articles' equal privileges clause. Example: A bylaw that requires a member to have a specific, hard-to-obtain certification to serve on the board would likely be viewed as inconsistent with the articles' mandate for equal privileges for all members.
FYI, The question is not whether all members are equal, but rather if part time residents, aka snowbirds, have a right to special consideration for being away from the area and still serve on the board of directors. The prescribed time to be available is 10 months out of the year and physically in residence. This has been the doctrine for many years, at least as far as I can remember. My suggestion was for anyone wanting to be away from the area but still be on the board, they attain, at their own expense, a dedicated phone URL and equipment as to access the RCSC network and not place the network or any other information at risk. This would be a risk to the network that should be mitigated and having additional protocols in place cost money. If the potential director knows of these potential costs to insure the safety of the network, they can be prepared for a cost analysis based upon their respective remote location and equipment requirements. I do not feel it fair that members pay the cost of a secured network for someone wanting to serve locally for only part of the time. Being a director means access to information above the usual level of service afforded the general user. The need for a secure connection would be an absolute must to work remotely and access the RCSC infrastructure. It could be disastrous for the RCSC if the network were somehow compromised.
Carole, just because this has been the doctrine for many years doesn't mean it's correct. According to our documents, the only way the corporation will allow a person to become a Member is if the corporation also allows that Member too have equal rights and privilege's. If a bylaw is preventing a Member the right and privilege to serve as a Director on the board, then, IMHO, that requirement is in violation of the Articles. I'm still up in the air on whether I would vote for a snowbird, and firmly believe that it's the voting Member's who should decide if a candidate is worth voting for or not. I would have to learn more about the persons commitment and ability to serve. And don't forget, if a snowbird Director is not fulfilling his/her duties, they can be voted off the board by the board! They've done it before!!!!
My point was not about being a snowbird, but if you intend to be away and out of the local phone network, which the RCSC has protocols set for, and you want to be able to access the proprietary network and it’s information as a board member, then there will be a need for extra security and protection to be able to use the system. I reiterate, a separate URL for the remote user to access. Just dialing in off the cell phone is not protection enough for accessing the RCSC network. A phone with a dedicated number with additional security code is also needed. These are costs associated with leaving the area and wanting to access the RCSC network as a board member. I say that cost be borne by the person who has decided not to stay in the area and wishes to work remotely. That was the full point of my message, NOT excluding part time residents. I have never said anything about Snowbirds and hating them. I never have spoken ill of part time residents, despite being accused of such, several times. I just don’t think the members should have to bear the costs associated with someone wanting remote access.
And that was one of my comments when they decided to pass a bylaw allowing for electronic meetings. They pretty much made a blanket statement saying that attending meetings electronically are permissible, but they never elaborated on such things as: (From RONR 12th ED.) Sample Rules for Electronic Meetings for Scenario A 1. Login information. The Corresponding Secretary shall send by e-mail to every member of the Board, at least [time] before each meeting, the time of the meeting, the URL and codes necessary to connect to the Internet meeting service, and, as an alternative and backup to the audio connection included within the Internet service, the phone number and access code(s) the member needs to participate aurally by telephone. The Corresponding Secretary shall also include a copy of, or a link to, these rules. 2. Login time. The Recording Secretary shall schedule Internet meeting service availability to begin at least 15 minutes before the start of each meeting. 3. Signing in and out. Members shall identify themselves as required to sign in to the Internet meeting service, and shall maintain Internet and audio access throughout the meeting whenever present, but shall sign out upon any departure before adjournment. 4. Quorum calls. The presence of a quorum shall be established by audible roll call at the beginning of the meeting. Thereafter, the continued presence of a quorum shall be determined by the online list of participating members, unless any member demands a quorum count by audible roll call. Such a demand may be made following any vote for which the announced totals add to less than a quorum. 5. Technical requirements and malfunctions. Each member is responsible for his or her audio and Internet connections; no action shall be invalidated on the grounds that the loss of, or poor quality of, a member’s individual connection prevented participation in the meeting. 6. Forced disconnections. The chair may cause or direct the disconnection or muting of a member’s connection if it is causing undue interference with the meeting. The chair’s decision to do so, which is subject to an undebatable appeal that can be made by any member, shall be announced during the meeting and recorded in the minutes. 7. Assignment of the floor. To seek recognition by the chair, a member shall… [specifying the exact method appropriate to the Internet meeting service being used]. Upon assigning the floor to a member, the chair shall clear the online queue of members who had been seeking recognition. To claim preference in recognition, another member who had been seeking recognition may promptly seek recognition again, and the chair shall recognize the member for the limited purpose of determining whether that member is entitled to preference in recognition. 8. Interrupting a member. A member who intends to make a motion or request that under the rules may interrupt a speaker shall use [the designated feature] for so indicating, and shall thereafter wait a reasonable time for the chair’s instructions before attempting to interrupt the speaker by voice. 9. Motions submitted in writing. A member intending to make a main motion, to offer an amendment, or to propose instructions to a committee, shall, before or after being recognized, post the motion in writing to the online area designated by the Recording Secretary for this purpose, preceded by the member’s name and a number corresponding to how many written motions the member has so far posted during the meeting (e.g., “SMITH 3:”; “FRANCES JONES 2:”). Use of the online area designated by the Recording Secretary for this purpose shall be restricted to posting the text of intended motions. 10. Display of motions. The Recording Secretary shall designate an online area exclusively for the display of the immediately pending question and other relevant pending questions (such as the main motion, or the pertinent part of the main motion, when an amendment to it is immediately pending); and, to the extent feasible, the Recording Secretary, or any assistants appointed by him or her for this purpose, shall cause such questions, or any other documents that are currently before the meeting for action or information, to be displayed therein until disposed of. 11. Voting. Votes shall be taken by the anonymous voting feature of the Internet meeting service, unless a different method is ordered by the Board or required by the rules. When required or ordered, other permissible methods of voting are by electronic roll call or by audible roll call. The chair’s announcement of the voting result shall include the number of members voting on each side of the question and the number, if any, who explicitly respond to acknowledge their presence without casting a vote. Business may also be conducted by unanimous consent. 12. Video display. [For groups using video, but in which the number of participants is too large for all to be displayed simultaneously:] The chair, the Recording Secretary, or their assistants shall cause a video of the chair to be displayed throughout the meeting, and shall also cause display of the video of the member currently recognized to speak or report.
I think you may be overlooking one very important provision of the bylaws which states as follows: ARTICLE II – MEMBERSHIP, CARDHOLDERS AND GUESTS SECTION 1: MEMBERS, MEMBERSHIP, MEMBER CARD/CARDHOLDER Members in good standing will be considered as the Membership of the Corporation. Members in good standing may: 1. Vote; 2. Serve on the Board of Directors or Committees; ... This does not say may serve on the board of directors only if you are physically present in your Sun City home 10 months of the year. I think several contributors to this post are expressing collective paranoia. OUR BYLAWS HAVE THE AUDACITY TO ILLEGALLY PROHIBIT MEMBERS WHO PROPERLY VOTE IN ARIZONA ELECTIONS FROM SERVING ON THE RCSC BOARD. Call it what you may but it is unacceptable to me.
It isn't just that John, the Arizona Revised Statutes say in 10-3140, Definitions: 20. "Directors" or "trustees" means individuals, designated in the articles of incorporation or bylaws or elected by the incorporators, and their successors and individuals elected or appointed by any other name or title to act as members of the board. And under Arizona Revised Statute 10-3802, Qualifications of directors, it says: The articles of incorporation or bylaws may prescribe qualifications for directors. A director need not be a resident of this state or a member of the corporation unless the articles of incorporation or bylaws so prescribe. So the bottom line is this, the Arizona Revised Statutes and the RCSC Articles of Incorporation do not specify any restrictions or qualification requirements other than needing to be a Member of the Corporation. Additionally, they both allow the Bylaws to set the eligibility requirements and manner in which the Directors are elected. So my point is; I don't see any exclusionary excuse that can be blamed on either the ARS or the RCSC Articles of Incorporation that would restrict a Snowbird from serving as a Director. It all comes down to the Bylaws. I believe this is an issue that can only be addressed with an amendment to the Bylaws, but....is serving as a Director an "affair of the corporation"? I get it, the Bylaws can set the requirements and eligibility standards to serve on the board, but I wouldn't say that they are set in stone by some statute or article in the Articles of Incorporation. It will be up to the Members to decide if they would allow, or want a Snowbird to serve or not through an amendment at our Annual Membership Meeting, but only if that's a permissible amendment to the Bylaws that the lawyers would even allow?
Tom, Got it. The thing that bugs me is the equal rights clause in the Articles and the unconditional grant of the right to be a director in the bylaws. Under the revised bylaws I would argue there is NOTHING that the members can properly bring up without the Board's approval because of the catchall language that states business affairs of the corporation includes everything that is not expressly reserved for the members. There is nothing expressly reserved for the members in the AOI or ANCA. John
I certainly don’t see a line of candidates lining up to serve. I’ve heard of many part time residents that would be happy to serve but it is becoming more and more a good ole boy network. So right now, if we don’t get enough new candidates, no problem the current members will just reach out and appoint their buddies. Is that what you want?
Well said Larry and as I read these new bylaws that mat well be the intended outcome. What’s really sad is the board appears to want that as their preferred method of getting new board members.
