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Filling Board vacancy


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Our condominium board has 7 members, one has recently resigned. An initial vote for the replacement ended in a tie, 3-3, with the President voting. Out bylaws state (verbatim):

 

"If the office of any director or directors becomes vacant by reason of death, resignation, retirement,

disqualification, removal from office or otherwise, a majority of the remaining directors though less than a quorum, at a special meeting of directors duly called for this purpose, shall choose a successor or successors, who shall hold office for the unexpired term in respect to which such vacancy occurred."

 

With this vagueness, what are the remedies to break the tie?

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There is no need to break the tie since a tie means that a majority wasn't in favor of the motion and thus the motion failed.  As for actually filling the vacancy you could look to see if there is anyone who is more palatable to the members or the 3 who are in favor of this person might have to do a bit of horse trading with one or more of those who were against this person ("if you vote for Mr. X then we will vote for something you want").

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Instead of voting on a motion to appoint a replacement, why not hold an election? (though it won't necessarily prevent the need for multiple rounds of voting).

 

The question, I suppose, is what does "a majority of the remaining directors though less than a quorum ... shall choose a successor or successors" mean. Does it mean that more than half of the remaining directors must vote in favor of a candidate in order for him to be chosen? If it simply said "the remaining directors though less than a quorum ... shall choose a successor or successors", there may not be any problem.

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Well, there could still be a problem if they continue to have tie votes, but if the method of selection is an election (and I don't see why it shouldn't be) then things might go easier.  For example, if only one candidate is nominated, that candidate could be elected by acclamation.  If two or more are nominated, or if there are write-in votes, then the standard advice is appropriate:  Keep voting until  someone gets a majority, or people get tired of the process and change sides, or someone from one contingent or the other has to go to the loo.

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Well, there could still be a problem if they continue to have tie votes, but if the method of selection is an election (and I don't see why it shouldn't be) then things might go easier.  For example, if only one candidate is nominated, that candidate could be elected by acclamation.  If two or more are nominated, or if there are write-in votes, then the standard advice is appropriate:  Keep voting until  someone gets a majority, or people get tired of the process and change sides, or someone from one contingent or the other has to go to the loo.

 

Even in an election, a bylaw provision that "a majority of the remaining directors ... shall choose a successor or successors" raises questions, unless you see no difference at all between "a majority of the remaining directors" and "the remaining directors."

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Because of this vagueness, past presidents in our organization have pulled tricks ("consolidated power") by creating an "Executive Committee" of three directors who decided everything behind the scenes, essentially disenfranchising other directors of their votes (2 of which resigned in protest, but the exec committee remained). Our Bylaws could not help us break up that little monopoly.

 

Does this establish precedent whereby a future president could, say, break the tie and 'declare' the vacancy filled... based on some reason (experience, etc)? It would not be popular with the opposition, but is it illegal?

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Because of this vagueness, past presidents in our organization have pulled tricks ("consolidated power") by creating an "Executive Committee" of three directors who decided everything behind the scenes, essentially disenfranchising other directors of their votes (2 of which resigned in protest, but the exec committee remained). Our Bylaws could not help us break up that little monopoly.

 

Does this establish precedent whereby a future president could, say, break the tie and 'declare' the vacancy filled... based on some reason (experience, etc)? It would not be popular with the opposition, but is it illegal?

 

Your bylaws probably could have broken up that little monopoly.  If they don't establish an "executive committee" then no such committee exists.  And even when they do, their power is usually limited.   Of course if there are three on one side of an issue and only two on the other, the three are going to be able to do pretty much as they please, but not violate the bylaws.

 

It sounds like your best defense would be to (quick like a rabbit) gain a working knowledge of RONR and practice repeating the phrase "Please show me the rule that grants you that authority."  

 

Presidents can't break a tie if they've already voted once, by the way.   One person--one vote.

 

Illegal?  We don't do legal here--not even those among us (not me) who are lawyers

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Even in an election, a bylaw provision that "a majority of the remaining directors ... shall choose a successor or successors" raises questions, unless you see no difference at all between "a majority of the remaining directors" and "the remaining directors."

 

Daniel, your comment reads like you think there is a difference between "a majority of the remaining directors" and "the remaining directors." I don't see how they could be different or what questions are raised.

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I think what is going on here with "a majority of the remaining directors, though less than a quorum" is probably (though not specified by the original poster) this organization may define a quorum based on Board positions and not actual board members, as would be the RONR default. [i am a board member of such an organization].

 

A problem with defining a quorum based on board positions, some of which may be vacant, is that if there are too many vacancies - a quorum could not be achieved to then fill vacancies. This language, which defines a quorum differently (a majority of actual board members) for the purpose of filling vacancies allows the Board to meet and fill vacancies. Then, once vacancies are filled, it is then possible to meet a quorum based on board positions (because vacancies have been filled).

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I think what is going on here with "a majority of the remaining directors, though less than a quorum" is probably (though not specified by the original poster) this organization may define a quorum based on Board positions and not actual board members, as would be the RONR default. [i am a board member of such an organization].

 

A problem with defining a quorum based on board positions, some of which may be vacant, is that if there are too many vacancies - a quorum could not be achieved to then fill vacancies. This language, which defines a quorum differently (a majority of actual board members) for the purpose of filling vacancies allows the Board to meet and fill vacancies. Then, once vacancies are filled, it is then possible to meet a quorum based on board positions (because vacancies have been filled).

 

Yes, perhaps this bylaw provision entangles quorum and voting requirements, which is unfortunate. In this connection, the discussion in What’s new in the 11th edition — Part 3: Definition of “majority vote” may be worth noting.

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  • 5 years later...

One of the many problems with HOA By-Laws and CC&Rs. What I read would then lead you to the Corp. Code which states "if the Board does not appoint a director, an election can be called by the members". I am putting the statute in my own language, but this will break that log jam.      CC 7213 I believe.... good luck.

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