Derik Dautel

Thank you Mr. Honemann, In the interest of brevity I left out some of the details that you might need to render an opinion. The body in question is an electric cooperative and the board and staff manage all aspects of the annual member meeting. The vacancy occurred after the 2023 Director election application deadline had passed, but before the election. The board declared the seat was vacant and that they would not put the seat up for election until 2024. Due to the timing of the board meetings the announcement that they had made this declaration went unpublished till ballots were printed. At that point, for all practical purposes the only remedy would be a rather expensive and time consuming special election for this seat. For decades this board had always declined their option to appoint, so it was only after they changed course after the election been completed did the membership cry "foul" over the action. The members were okay with the decision to not fill the seat as avoiding the special election and salary would save the cooperative over $60,000, but they are not okay with the board taking away their ability to vote on their representative. In short, the argument is that it was the member's seat to leave open at that point, not the board's.

Looking for options from this group considering the following bylaw: If a director's position is vacant, the board may appoint a member of the cooperative to fill the director's position until the next regular or special members' meeting. At the next regular or special members' meeting, the members must elect a director to fill the unexpired term of the vacant director's position. A vacancy arose up four months before the regular member's meeting but the board "misinterpreted" the bylaw and did not run the seat in the election. A few months after that, the board decided to appoint someone to that seat. The board recognized that they erred in not running the seat, but is resisting efforts to overturn the appointment. The board contends that they were allowed to fill the seat with an appointment as it was still a vacancy. I contend that the bylaws only allowed them to appoint up until the next regular members' meeting and once that date has passed, the only way to fill the seat is through a special election. I further contend that skipping the election does not extend their authority over the seat. Interpreting otherwise would infer that the board could have appointed someone, had them resign right before the election, appoint them again, have them resign right before the election, appoint them again, ad nauseum. My questions: 1. Which interpretation is correct? (or is there a third option) 2. Is there a terminology to describe this state of limbo for a seat? Thank you, in advance, for you thoughtful responses.

Thank you all for your time and consideration of this question. I'll impose on you more by asking you to weigh in on remedies. Since the appointment was via a vote on a motion made with the term ending in 2025, is the motion (and as a result the appointment) invalidated? A motion to modify the appointment motion seems problematic in that people may not have voted to appoint for an 8 month tenure vs the 20 month in the motion. Since this board position has a paid stipend attached to it, a motion to rescind may have legal consequences as well.

The question has not been given to the general membership. The only way that I know to ask the question is though the annual election process and by then the point is somewhat moot.