Permissive vs Prohibited

Question

Bylaws from A Florida CCR documentations:

Special meetings of the Board may be called by the president on five ( 5) days notice to each Director either personally or by mail , facsimile transmission or electronic mail. Special meetings shall be called by the president or secretary in a like manner and on like notice on the written request of three (3) Directors

The first sentence uses the may indicates permissiveness granting authority. The second sentence uses the word shall, which signals to me a requirement.

QUESTION 1

Does sentence one somehow preclude other directors call for a meeting? Why? (seeking to understand the line of reasoning).

QUESTION 2 & 3

Assume a challenge has been raised regarding the validity of a meeting that was held by a hypothetical alleged president, secretary and treasurer. The trio verbally agreed to hold a meeting and the alleged president picked the meeting day. Does this not trigger the requirement of sentence two? The challenge is that the treasurer called for the meeting.

It turns out that after the meeting alleged president had resigned: he is restored to the board at said meeting (though not as president). Assume a 5 member board.

Is there any basis to adjudicate the meeting is invalid?

Why would counsel indicate that meetings can not be called by the treasurer, given the agreement of 3 members willing to meet?

BYLAWS: MEETINGS CCRs Excerpt:

Section 7. Meetings:

A. The first meeting of each Board newly elected by the members shall be held immediately upon adjournment of the meeting at which they were elected, provided a quorum shall then be present, or as soon thereafter as may be practicable. The annual meeting of the Board of Administration shall be held at the same place as the general members' meeting, and immediately after the adjournment of same, to elect officers for the following year.

B. Regular meetings of the Board shall be held quarterly at such time and place as the Board shall fix from time to time.

C. Special meetings of the Board may be called by the president on five ( 5) days notice to each Director either personally or by mail , facsimile transmission or electronic mail. Special meetings shall be called by the president or secretary in a like manner and on like notice on the written request of three (3) Directors.

D. Meetings of the Board of Administration shall be open to all unit owners. Notice of all meetings shall be posted on the official bulletin board of the Association at least forty-eight ( 48) hours in advance of each scheduled meeting and directed to the attention of all unit owners. In case of an emergency, a meeting of the Board of Administration may be held without notice. Written notice of any Board meeting at which non-emergency special assessments or amendments to rulesregarding unit use will be considered shall be mailed or delivered to unit owners and posted not fewer than fourteen (14) days prior to the meeting date.

Answer 1

Just from reading the text:

Question 1:

It does not preclude other directors from calling the meeting, but does not give them the power to do so. The same way that the text does not preclude me (or anyone else) from calling the meeting, yet my calls for a meeting can be ignored.

The fact that there is a procedure for other directors to call for a meeting and that the procedure establishes additional restrictions makes it safe to say that individual directors do not have the power to call a meeting on their own.

Question 2:

Since the president has agreed to the meeting, the meeting is valid as for point #1 (it is a meeting voluntarily called for by the president). The fact that the president decided to call it because the treasurer (or his hair dresser, or tarot reader) convinced him to do so is unrelated.

Question 3:

The meetings are always called by the president, what the directors may do is to force the president to call the meeting. If it is established that the alleged president was not the actual president, his acts as president are void. So, the meeting would have been not properly called and any actions/agreements deriving from it could be challenged.

Note that if the alleged president was found to be a director, even if two other directors agreed with him about the need of a reunion, the proper procedure would have been to them contact the actual president to call for the meeting.

Answer 2

What it means

The president has discretion to call a special meeting any time they like.

The president or the secretary must call a special meeting if 3 (or more) directors ask them to in writing.

Nobody else has the power to call a special meeting.

Does sentence one somehow preclude other directors call for a meeting?

Yes.

Only the president can call them at will. The secretary (or president) must call them when properly requested. No one else can.

Is there any basis to adjudicate the meeting is invalid?

It is by no means obvious that a meeting held in contravention of the by-laws is ipso facto invalid. Actions done by boards in good faith but in contravention of the technical requirements are usually valid, particularly if they affect third-part rights.

In addition, if this is a restriction that has routinely been overlooked or ignored over a period of time without complaint then a strong argument exists that adherence has been waived by the members. The members could require adherence going forward but it would not invalidate things done in the past.

However, in the circumstances, it seems the treasurer was acting on behalf of and with the knowledge and assent of the president (and the secretary) - i.e. they were the president’s and\or secretary’s agent. So, actions done by them are legally the actions of the president or secretary - it would be reading the requirement too narrowly to suggest the president or secretary has to handle the communications personally.

Why would counsel indicate that meetings can not be called by the treasurer, given the agreement of 3 members willing to meet

Because counsel is technically right - the power is given to the president or the secretary, not the treasurer. However, this argument is likely to fail in court for the reasons stated above.