Difference Between Filling Vacancies & Electing Successors?

[anon]

I'm struggling to find a way to resolve a Bylaws created gap in condominium Board member service between the date of the annual Association meeting election and "the first day of the calendar month following the date of adjournment of the annual meeting at which Board members are elected." The Bylaws say, "The owners shall elect members to the Board or fill vacancies therein." Further, "The normal term of office for the Directors will be for two (2) years and until their successors are elected and take office."  There are five staggered two-year Board terms elected by ballot; three two-year positions expire when two two-year positions remain with one-year each unexpired. The Board is allowed to fill vacancies, by majority vote and "Each person so selected shall be a Director until a successor is elected at the next annual meeting of the Association to serve the balance of the unexpired term, if any."

The Association routinely has incomplete elections at their annual meetings and the Board routinely fails to fill vacancies, or they don't stay filled for very long. The Board typically runs with three of the five positions filled most of the time and they are allowed to elect officers from among themselves. All five positions will be open for election at the annual meeting. There is currently one Board member (Treasurer) elected by the Association with an expiring two-year term and one Board member (Secretary) elected by the Board to fill a vacancy with an unexpired balance of one year remaining. The Board President pro tempore was elected by the Board to fill a vacancy and will not be an Association member the day after the annual meeting due to the sale of their unit. That will leave the Board without a president and without a quorum since the Secretary is a snow bird and is not currently present to conduct business (video, phone, and web conferencing not allowed by Bylaws).

Am I wrong to assume that the Association can vote to fill the Board "vacancies" for immediate service and then elect "successors" for all five positions who will begin serving on the first day of the month following the month of their election? This would allow the Association to avoid having a Board without a President and without a quorum to elect one for as much as five weeks from the time of annual meeting adjournment until the time the new Board is allowed to take office. This time lag is worst case assuming lack of a quorum and rescheduling of the annual meeting to gain the quorum needed to hold elections.

[Atul Kapur]

You did not provide all the details of elections (and I'm not asking). However, there may not necessarily be a gap for all five positions.

New terms begin on the first day of the next calendar month after the annual meeting. So if your meeting is in February, their terms will start March 1, 2020 and go to March 1, 2022.

However, the people who are elected to fill the two vacancies are being elected to terms that have already started (March 1, 2019 - March 1, 2021). So there should be no delay, those two people will be directors the moment their elections are finalized. And their term will be until 2021.

In other words, just because the elections to fill the vacancies are being held at the annual meeting, that doesn't mean the vacancy-fillers are subject to the same delay as those elected to new terms.

This is based on the incomplete facts and the way I've generally seen these things written in bylaws. See if this fits with what is actually written in your bylaws.

[Gary Novosielski]

4 hours ago, anon said:

I'm struggling to find a way to resolve a Bylaws created gap in condominium Board member service between the date of the annual Association meeting election and "the first day of the calendar month following the date of adjournment of the annual meeting at which Board members are elected." The Bylaws say, "The owners shall elect members to the Board or fill vacancies therein." Further, "The normal term of office for the Directors will be for two (2) years and until their successors are elected and take office."  There are five staggered two-year Board terms elected by ballot; three two-year positions expire when two two-year positions remain with one-year each unexpired. The Board is allowed to fill vacancies, by majority vote and "Each person so selected shall be a Director until a successor is elected at the next annual meeting of the Association to serve the balance of the unexpired term, if any."

The Association routinely has incomplete elections at their annual meetings and the Board routinely fails to fill vacancies, or they don't stay filled for very long. The Board typically runs with three of the five positions filled most of the time and they are allowed to elect officers from among themselves. All five positions will be open for election at the annual meeting. There is currently one Board member (Treasurer) elected by the Association with an expiring two-year term and one Board member (Secretary) elected by the Board to fill a vacancy with an unexpired balance of one year remaining. The Board President pro tempore was elected by the Board to fill a vacancy and will not be an Association member the day after the annual meeting due to the sale of their unit. That will leave the Board without a president and without a quorum since the Secretary is a snow bird and is not currently present to conduct business (video, phone, and web conferencing not allowed by Bylaws).

Am I wrong to assume that the Association can vote to fill the Board "vacancies" for immediate service and then elect "successors" for all five positions who will begin serving on the first day of the month following the month of their election? This would allow the Association to avoid having a Board without a President and without a quorum to elect one for as much as five weeks from the time of annual meeting adjournment until the time the new Board is allowed to take office. This time lag is worst case assuming lack of a quorum and rescheduling of the annual meeting to gain the quorum needed to hold elections.

It's difficult to say for certain from reading your question, but it's perhaps worth pointing out that an incomplete election and a vacancy are not the same. 

• Vacancies result from someone vacating an office during the term, and therefore needing a replacement. 
• Incomplete elections, per your bylaws, do not create a vacancy since the incumbent continues until a successor is elected and takes office.  This implies election by the normal means, not by some vacancy-filling procedure.

So, when an incomplete election occurs, the remedy is not vacancy-filling.  The remedy is completing the election.  If the election is not completed at the annual meeting, an adjourned meeting should be set to complete it.

 

[anon]

Please correct me if the logic below does not align with your advise to me.

One incumbent remains from a January 8, 2018 two-year term. Two incumbents from this same election resigned or are no longer members of the Association, leaving the remainder of their two-year terms vacant. The Board filled these two positions. The terms for all three of these positions expired on February 1, 2020. The next annual meeting is February 19, 2020 and one elected successor can take office March 1, 2020. The other two elected successors can take office immediately. The terms for all three of thee positions will expire on March 1, 2022.

Two remaining two-year term positions have one year remaining, since they were not filled by election at the annual meeting of January 9, 2019, and will expire on February 1, 2021. Further, the Board had no authority to fill these positions as they cannot be deemed vacancies due to an incomplete election. If the Association is able to fill these positions by election at their February 19, 2020 meeting, these two new directors would take office on March 1, 2020.

And this is all made possible because the Bylaws say:

(1) "Each person so elected [by the Board to fill a vacancy] shall be a director until a successor is elected at the next annual meeting of the Association to serve the balance of the unexpired term, if any."

(2)  "The normal term of office for the Directors will be for two (2) years and until their successors are elected and take office." 

(3)  "There term of office for Directors will begin the first day of the calendar month following the date of adjournment of the annual meeting at which Board members are elected."

[Atul Kapur]

I would say that the terms for the three positions elected in 2018 end on March 1, 2020 when the successors take office. This applies to the one elected in Jan 2018 and the ones who are filling the vacancies.

As for the two positions that weren't filled last year: the two people who are elected this year take office immediately upon their election. Their terms end when their successors take office in 2021.

Generally, your bylaws don't create gaps. Incumbents stay in office until the end of the two years AND their successors take office. If that doesnt happen until the  25th month of the term (or 26th, 27th, etc), then the term continues until it does.

[anon]

14 hours ago, Atul Kapur said:

I would say that the terms for the three positions elected in 2018 end on March 1, 2020 when the successors take office. This applies to the one elected in Jan 2018 and the ones who are filling the vacancies.

As for the two positions that weren't filled last year: the two people who are elected this year take office immediately upon their election. Their terms end when their successors take office in 2021.

Generally, your bylaws don't create gaps. Incumbents stay in office until the end of the two years AND their successors take office. If that doesnt happen until the  25th month of the term (or 26th, 27th, etc), then the term continues until it does.

Thank you for your concise opinion. You have taught me a lesson about some undesirable consequences of an incomplete election. I can see the value in conducting periodic audits of a society's elections. In this case, I found the Board had more Directors than there were vacancies to fill in a 41 calendar day period. This could have serious consequences since the unauthorized Director was appointed as President, conducted business on behalf of the Board, and presided over an Association budget meeting. I presume actions authorized by this President could be invalidated, making them null and void and thus possibly subject to  challenge. At least there were no Board quorums that would have been concluded differently since it appears all Board votes were unanimous.

Should the Association be considered derelict in their duty to complete elections if they do not make any effort to repeat elections until all Board positions are filled? How much effort should be evidenced in order to establish due diligence?

[Atul Kapur]

2 hours ago, anon said:

I found the Board had more Directors than there were vacancies to fill in a 41 calendar day period.

I don't clearly understand what you are describing. However, if you are saying that the President was not a properly elected Director, unless there were decisions that were made by a margin of one vote, I do not think that the actions of the board are invalidated.

Since this is a different matter, you'd probably be better off posing it as a new question. And some of the new questions are likely beyond RONR.

Edited February 8, 2020 at 08:00 PM by Atul Kapur
Added underlined part and corrected typos

[Richard Brown]

I believe there are old threads in this forum which conclude that after a period of time incomplete elections may indeed turn into vacancies.  Perhaps  someone will do a search of the forum.  I'm not able to do it right now.

[anon]

On 2/8/2020 at 11:25 AM, Richard Brown said:

I believe there are old threads in this forum which conclude that after a period of time incomplete elections may indeed turn into vacancies.  Perhaps  someone will do a search of the forum.  I'm not able to do it right now.

I spent some time searching this forum for your reference but could not find it. Probably due to my lack of experience using the search function here.  However, I did find where this is addressed in National Association of Parliamentarians Newsletter Volume 78, No. 1, Fall 2016. Don't ask me how I lucked out on that one! So here it is paraphrased below from the Questions and Answers section with George Mervosh named as one of the contributors:

"In general, the proper way to complete an election is found in Robert’s Rules of Order Newly Revised (RONR) (11^th ed.), p. 444, lines 9-15. That method is to establish an adjourned meeting to complete the election or to postpone it until the next regular meeting if that regular meeting is within the quarterly time interval. It would be improper for the Board to use the bylaws vacancy clause to complete the election. In such a case, it would create an ongoing breach, as it would deprive anyone who might be absent at this meeting from voting in the election at the next meeting (p. 251, e). ... [However,] if there is no adjourned meeting within the quarterly time interval, the majority can no longer complete the election. The ability to elect has passed beyond the control of the majority. This would be a true vacancy, as there is no way for the assembly to fill the position without violation of the quarterly time interval rule (RONR, p. 90, lines 9-14). A vacancy would occur and would be filled as the bylaws provide for filling vacancies."

Edited February 10, 2020 at 12:38 PM by anon
removed "of the Assocation" from the paraphrase as this was not in the original article

[Josh Martin]

On 2/8/2020 at 1:25 PM, Richard Brown said:

I believe there are old threads in this forum which conclude that after a period of time incomplete elections may indeed turn into vacancies.  Perhaps  someone will do a search of the forum.  I'm not able to do it right now.

A vacancy occurs when the office is vacant (that is, there is no one in the office). In certain circumstances, there may be an incomplete election and a vacancy. This might occur if, for instance, the bylaws provide that officers serve only for a fixed term. In such cases, the person appointed to fill the vacancy would serve only until the election can be completed.

In this organization, because the bylaws provide that officers serve until their successors are elected, an incomplete election, in and of itself, would not cause a vacancy, since the current officers would continue serving. These officers might eventually resign, however, which would create a vacancy.