The Need for Updated Bylaws
Updated: Sep 8, 2019
The case for updating the Foothills Community Association (FCA) Bylaws is very simple. Currently the Bylaws are terribly out of date, replete with text that is obsolete or rendered inoperative by Arizona law. Anyone reading the Bylaws to try to understand the rules under which the FCA operates would be seriously mislead in many areas. Moreover, there is no place that properly spells out the rules under which the FCA actually does operate. This is not acceptable, and fixing the problem would be relatively easy.
I will offer a few examples.
There are references to the ‘Declarant’. This is the ‘Foothills Joint Venture’ that initially created the FCA back in 1987. There are similarly references to ‘Class B’ memberships, which are those held by the Declarant. Both of these terms have been obsolete for many years.
There are 14 references to proxy voting, and even an entire section of the Bylaws (Section 2.5) devoted to it. However, Arizona Revised Statutes Section 33-1812 A. has banned proxy voting within the FCA for many years. Instead, this ARS Section authorizes absentee ballots. There is no reference to absentee ballots in the Bylaws, although the FCA routinely uses absentee ballots for elections.
Common sense tells us that this is not the way things should be. The Bylaws should accurately state the rules under which the FCA operates.
The Board argued that it was not practical to amend the Bylaws, insisting this would require a majority of the entire FCA membership, or more than 2,400 votes. They argued that this number simply was not attainable, given the normal turnout for elections. We challenged this interpretation of the rules, however, and on August 28, 2019, the Board reversed its position and acknowledged that the Bylaws could be amended by a majority of those voting in the election, provided that there was a quorum. Thus, the Bylaws can be amended by a very attainable number of votes.
In practice, updating the Bylaws annually would be simple. At the end of the legislative cycle each year, the Board could determine if there were any new statutes that required amendments to the Bylaws. If so, the Board could bundle these with any other updates that might be necessary and present them to the homeowners at a Board meeting for comment. After receiving input from the members, the Board could include the proposed amendments in the annual election materials to be voted on by the members. The first package of amendments would be substantial, given how outdated the Bylaws currently are. After that, the process would be much narrower, and in many years there likely would be no need for any amendments.
It is worth noting that the Bylaws have been amended previously. They were amended at an annual meeting in 1994, and in 2013 the Board restated them for the purpose of integrating the 1994 amendments into a single set of Bylaws.