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Guest Steven H

Board vacancy appointments with a quorum

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Guest Steven H

My HOA board is required to consist of 7 members. Our Bylaws require a quorum of 4 board members to take action, and allows the board to appoint vacancies on the board until our annual meeting.

We have recently have had 5 resignations. After the first 2, the board failed to fill the vacancies. We then had 3 more, so now our board cannot achieve a quorum of 4.

In this case, do our remaining 2 members still have the authority to make appointments to the 5 vacant seats even they cannot have the Bylaws requirement of a quorum? If not, what our our alternatives. Some have suggested a "special" election, but our board will be able to resume normal business as soon as possible if they are allowed to make appointments. I cannot find anything in RRNR that addresses BOTH appointment of vacancies and the inability to have a quorum. Thank you!

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Thank you for your quick response.

Yes, our bylaws are specific in defining a quorum as 4. Board members are elected annually by the entire association, with 3-year terms so approx. 1/3 of the board is re-elected each year. I believe our Declaration does allow for special meetings to be called, either by the board (which probably cannot do so without a quorum), or by a specified percentage of the membership. Our remaining 2 board members want to make appointments to hasten the process, but I'm not sure if they can do this. Ultimately, I think we need to amend our bylaws to account for this situation, but right now, we're in limbo. I feel the proper solution is to call a special meeting with whatever notice is required in our governing documents and hold an election at this meeting to fill the vacancies until our next annual meeting, in September.

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Let me add one more thing: Our board has consulted an attorney who says they are empowered to make these appointments. We've HIGHLY RECOMMENDED that they get a letter of opinion from the attorney citing the reasons for his opinion before taking this action.

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I think when pushed to put an opinion in writing, with some kind of citation, the attorney isn't going to be able to uphold this opinion, unless the people who asked for this opinion didn't give complete information, but a letter of opinion should cite the information he's basing his conclusion on. Basically, when our board tells us that they feel they can make appointments, were responding with: "Show us why you feel this way."

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Guest Lois

Can anyone tell me what happens if a board starts out with 9 members, has two people quit and does not readily refill the positions, then at a board meeting 6 of the remaining members attend a meeting but two jump up and say they quit and leave. The remaining 4 stay and conduct the business for that meeting. Did we actually have a quorum available to do this business? In other words do the 2 vacancies still count when figuring your quorum needs in which case we would have needed to have 5 left at that meeting to actually have a quorum for business purpose or were we ok based on the 7 actual members still on the board by having only the 4 left at the meeting. Confused now, ha!

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Well, first of all you haven't told us what the bylaws say about a quorum for board meetings.   So let's assume they are silent and that we're working from the rules in RONR.

The default quorum is a majority of the members of the body that is meeting.

Your board had seven members.  Vacant positions are not members. Members are living breathing individuals.  So a quorum would be a majority of seven, which is four.  So the meeting in question had a quorum.  I hope that when the two people said "I quit" and left, someone had the presence of mind to move to accept their resignations, which would lower the number of board members to five, and reduce the quorum to three.  Until you accept those resignations, they are still members.

However, if the bylaws set the size of the board at nine, you must fill those vacancies as soon as you can.

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Guest Who's Coming to Dinner
8 hours ago, Gary Novosielski said:

Your board had seven members.  Vacant positions are not members. Members are living breathing individuals.  So a quorum would be a majority of seven, which is four.  So the meeting in question had a quorum.  I hope that when the two people said "I quit" and left, someone had the presence of mind to move to accept their resignations, which would lower the number of board members to five, and reduce the quorum to three.  Until you accept those resignations, they are still members.

First of all, the board must be empowered to accept the resignations of its members. Secondly, how can the board validly accept those resignations when less than a quorum remains?

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11 hours ago, Guest Lois said:

Can anyone tell me what happens if a board starts out with 9 members, has two people quit and does not readily refill the positions, then at a board meeting 6 of the remaining members attend a meeting but two jump up and say they quit and leave. The remaining 4 stay and conduct the business for that meeting. Did we actually have a quorum available to do this business? In other words do the 2 vacancies still count when figuring your quorum needs in which case we would have needed to have 5 left at that meeting to actually have a quorum for business purpose or were we ok based on the 7 actual members still on the board by having only the 4 left at the meeting. Confused now, ha!

I'm afraid we are discussing two different organizations here.

Guest Lois, are you referring to the same organization as the original poster, Steven H?   If not, please ask your question by starting a new thread.  It will get much too confusing if we are discussing two different situations in one thread.

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On 3/19/2016 at 9:07 PM, Steven H said:

Thank you for your quick response.

Yes, our bylaws are specific in defining a quorum as 4. Board members are elected annually by the entire association, with 3-year terms so approx. 1/3 of the board is re-elected each year. I believe our Declaration does allow for special meetings to be called, either by the board (which probably cannot do so without a quorum), or by a specified percentage of the membership. Our remaining 2 board members want to make appointments to hasten the process, but I'm not sure if they can do this. Ultimately, I think we need to amend our bylaws to account for this situation, but right now, we're in limbo. I feel the proper solution is to call a special meeting with whatever notice is required in our governing documents and hold an election at this meeting to fill the vacancies until our next annual meeting, in September.

Steven, a lot of answers will depend on EXACTLY what your bylaws say about certain things, such as who can call special meetings of both the board and the membership.  It is quite possible that the president is empowered to call special meetings.  BTW,  those provisions will likely be in two different places in your bylaws.  it is also important to know whether the resignations have been accepted and whether your bylaws provide that resignations are effective upon by receipt.  If the resignations have not been accepted, perhaps enough of the members who want to resign will show up for a meeting for the purpose of filling vacancies.

So, you need to review your bylaws VERY CAREFULLY for relevant provisions and quote those provisions to us EXACTLY, without paraphrasing.

Since this is a homeowner's association, it is also quite likely subject to state law provisions regarding homeowner associations.  Those laws frequently have provisions regarding vacancies, quorum and notice provisions, etc.  Someone, whether one of your members or an attorney, needs to be reviewing those statutes for any applicable provisions.

I've got some other ideas, but let's start here.  And with the questions that others have asked.

Edited by Richard Brown
Added last sentence

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12 hours ago, Guest Who's Coming to Dinner said:

First of all, the board must be empowered to accept the resignations of its members. Secondly, how can the board validly accept those resignations when less than a quorum remains?

Yes, the board must at least be empowered to handle the affairs of the society between meetings, or a membership meeting would be required.

But apparently they still had a quorum with four.  Still, it would be easier to get three.  And the best course is to restore the board to its full membership.

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On 3/19/2016 at 9:08 PM, Steven H said:

Let me add one more thing: Our board has consulted an attorney who says they are empowered to make these appointments. We've HIGHLY RECOMMENDED that they get a letter of opinion from the attorney citing the reasons for his opinion before taking this action.

Steven, your attorney might be relying on state law. Sometimes state laws provide that the remaining board members, even if less than a quorum,  may still fill vacancies. Such a provision is also sometimes included in bylaws.

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