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Condo | HOA Lawyers

Yay, Nay, or Abstain?

Board members hold a crucial responsibility of making day-to-day decisions for the association and planning for future projects. These decisions often involve complex matters such as hiring contractors, determining assessments, taking enforcement or collection action against fellow owners, and setting an annual budget. Despite the potential unpopularity of some decisions, board members are obligated to participate in the decision-making process due to their fiduciary duty.

According to Ohio Revised Code Section 1702.55(C), “A director who is present at a meeting of the directors or a committee thereof at which action on any matter is authorized or taken and who has not voted for or against such action shall be presumed to have voted for the action unless the director’s written dissent therefrom is filed either during the meeting or within a reasonable time after the adjournment thereof, with the person acting as secretary of the meeting or with the secretary of the corporation.” This means if a board member is present at a meeting and abstains from voting, it is considered a “yes” vote.

Of course, there is an exception to the rule if a conflict of interest is present. For example, a conflict of interest exists if a board member works for the company that their board is considering hiring to perform services for the association. Another example is if a board member has made a rule violation allegation against another owner and the board is holding a hearing to determine if that alleged rule-violator should be sanctioned. In both examples, the board member has a conflict of interest and should abstain from the voting process. This abstention should be recorded in the meeting minutes, noting the potential conflict of interest, and would not be considered a “yes” vote.

In summary, unless there is a conflict of interest, every eligible board member is expected to vote on every issue. The community elects board members to make tough decisions in the best interest of the community as a whole. Excepting conflicts of interest, every board member should vote on every issue, without relying on a “yes” by abstention.

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