By Greg Ellison
(Feb. 20, 2020) Concerns over legalese in the Ocean Pines Association bylaws that permit the board of directors to vote by email in circumstances outside a public meeting were raised by the OPA Bylaws and Resolution Committee on Friday.
Committee chairman Jim Trummel said bylaws concerning informal actions taken by the board without a meeting were amended in 2008.
“I have no idea why the wording of that provision changed from pre-2008 to what it is now,” he said. “You have to read it the right way to understand the way it’s supposed to be done.”
Trummel said the current language related to informal board actions in OPA bylaws states any action required or permitted to be taken at a board meeting “may be taken if a unanimous written consent to take action without a meeting is signed by each director.”
“There’s no recognition that is more than simply approving to vote by email,” he said.
Committee member Keith Kaiser said the post-2008 revisions are poorly composed and likely require editing.
“It has grammatical errors in it,” he said. “It doesn’t sound like it’s well put together.”
Trummel said the earlier bylaws language was more in accordance with Maryland Corporate Code, which requires unanimous consent to “set forth the action.”
“The pre-2008 [language] mirrored the provision in the corporate article code for informal action without a meeting [but] the current version does not,” he said.
Kaiser said if the board seeks an informal agreement on a formal matter due diligence is vital to assure transparency.
“We’re allowed to do this because it’s a unanimous consent to vote, not what the vote will be, that’s your concern,” he said. “As long as everybody agrees ‘yes’ or disagrees ‘no,’ then you can feel pretty confident because that’s 100 percent, but if you have dissent … now there’s no discussion because it’s just all via email.”
Committee member Audrey Wahl said if the board agrees to vote by email outside of a public meeting there should be united consent.
“The point of this vote is to formalize that everybody agrees on something,” she said.
Committee member Jeff Knepper questioned if the bylaws language would need to specify a dual unanimous agreement.
“Your protection is you have to have unanimous consent to even have the vote,” he said. “That’s a pretty strong protection.”
Kaiser wondered if simply reaching overall agreement to vote via email compensates for bypassing open meeting discussions.
“To unanimously agree that we’ll deal with this later by email, to me that doesn’t seem very strong,” he said.
Trummel said Ocean Pines resident Joe Reynolds raised the same concern during the board meeting on Feb. 5, at which time OPA President
offered to seek a legal opinion on the matter.
“The code says you have to have unanimous consent to the action and file that [which is] only one step,” he said. “There’s clearly a conflict.”