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CCOC Decision Summary

#35-11, Brown v. Americana Finnmark Condominium Association (Brown III) (December 16, 2011) (Panel: Alkon, Farrar, Zajic).

 The member complained that the association's 2011 election was not properly conducted because the board refused to seat all 5 candidates who received votes, and only seated the 3 candidates with the most votes.  The member argued that since the bylaws said only that the board shall consist of at least 3 members and no more than 9, only the membership had the right to set the specific size within that range.  However, the board had decided that the size of the board was 5 members, and that there were 3 vacancies, and therefore that only 3 of the 5 candidates could be elected to the board.

The hearing panel noted that in #42-09, "Brown I," a different hearing panel had earlier ruled that the board had properly exercised its discretion to allow the membership to vote on whether the size of the board should be reduced from 7 to 5.  The membership, by a simple majority, voted to approve the change.  The hearing panel said that this decision did not hold that only the membership could determine the size of the board.

The hearing panel then referred to Section 2-401 (c) (2) of the Maryland Article on Corporations and Associations, which states that "a majority of the entire board of directors" may "alter within specified limits the number of directors set by the charter or the bylaws."  The panel then referred to Article V, Section 3 of the association's own bylaws, which stated that "all things which are not by law or these Bylaws directed to be done by members" may be done by the board.  Reading the two together, the panel concluded that both the law and the bylaws allowed the board of directors to set the size of the board within the range created by the bylaws, and that it was not required to submit this issue to the membership for a vote.  The panel ruled that the election results were proper and only 3 candidates could be elected to the board.

In a post-hearing proceeding the complainant's motion for reconsideration was denied since it raised no new arguments.  Subsequently the complainant filed a "reply" which asked the panel to reconsider its denial, and the panel dismissed the reply because there was no legal authority for a motion to reconsider the ruling on a motion for reconsideration.

[NOTE: This decision was affirmed on appeal to the Circuit Court, Case No. 357968 (August 21, 2012).]

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