When can vacancy be filled?

[Deb Parm]

We have a board member who has resigned effective at the close of our annual meeting. Per our bylaws, vacancies in our board are appointed by the President and ratified by the board. The appointment is until the normal election process in the spring.  The question is, when can the President appoint someone? Can this be done at the annual meeting, or should it wait until after the meeting when the vacancy actually exists?

[Gary Novosielski]

Unless I'm misunderstanding, your election process does not take place at your Annual Meeting?  Would terms not normally end at the end of the Annual Meeting, so that the normal election process would take care of it?

In any case, I don't believe there is any rule in RONR that would prohibit making an appointment in advance of an anticipated vacancy.  The motion to appoint, or ratify the appointment, or whatever, should include a provision stating when the appointment is to take effect.

[Deb Parm]

Correct, our elections take place in the Spring and the newly elected board members take over at the close of the annual meeting. If the President can appoint in advance, would the sitting board or the board elect ratify the appointment?

[Gary Novosielski]

On 10/25/2022 at 8:16 PM, Deb Parm said:

Correct, our elections take place in the Spring and the newly elected board members take over at the close of the annual meeting. If the President can appoint in advance, would the sitting board or the board elect ratify the appointment?

The board elect can't vote on anything until they become the board.  If you're saying that the future board might be unhappy with the choice the board makes now, it would only be in effect until the future board takes office, and those seats will be filled by election of the membership.

[Josh Martin]

On 10/25/2022 at 12:53 PM, Deb Parm said:

We have a board member who has resigned effective at the close of our annual meeting. Per our bylaws, vacancies in our board are appointed by the President and ratified by the board. The appointment is until the normal election process in the spring.  The question is, when can the President appoint someone? Can this be done at the annual meeting, or should it wait until after the meeting when the vacancy actually exists?

As a general matter, an appointment could be made and ratified in advance, however, the appointment would not take effect until the vacancy actually exists. So generally speaking the President could appoint, and the board could ratify, a particular appointment to take effect upon the close of the annual meeting.

In the particular circumstances where the persons who would approve such an appointment will be different at the time the vacancy occurs, however, I do not think it is appropriate to fill such a vacancy in advance.

On 10/25/2022 at 7:16 PM, Deb Parm said:

Correct, our elections take place in the Spring and the newly elected board members take over at the close of the annual meeting. If the President can appoint in advance, would the sitting board or the board elect ratify the appointment?

Whoever are the current board members at the time the vote to ratify is taken would vote on ratifying the appointment.

On 10/25/2022 at 7:42 PM, Gary Novosielski said:

If you're saying that the future board might be unhappy with the choice the board makes now, it would only be in effect until the future board takes office, and those seats will be filled by election of the membership.

I do not see anything from the facts presented suggesting that the appointment "would only be in effect until the future board takes office." We are told that the bylaws provide that "The appointment is until the normal election process in the spring."

I think there is some dispute over whether it is proper for the current board members to ratify this appointment. But to the extent that it is, I do not see any facts suggesting that the appointment would end at the time the new board takes office.

[Gary Novosielski]

On 10/26/2022 at 1:55 PM, Josh Martin said:

But to the extent that it is [proper], I do not see any facts suggesting that the appointment would end at the time the new board takes office.

I know it says until the election, but terms in this organization do not end at the time of election.  I'd bet that it actually lasts for the remainder of the unexpired term.  I'm assuming that at the next election, the appointed replacement's seat would be up for election, but like all the other elected offices, the changing of the guard will not take place until the end of the annual meeting.  Thus the term of the appointee (who will begin office now) will never overlap with the term of the newly elected board.

I could be wrong, but that's the result of my best gleaning effort.

[Josh Martin]

On 10/26/2022 at 5:46 PM, Gary Novosielski said:

I know it says until the election, but terms in this organization do not end at the time of election.  I'd bet that it actually lasts for the remainder of the unexpired term.  I'm assuming that at the next election, the appointed replacement's seat would be up for election, but like all the other elected offices, the changing of the guard will not take place until the end of the annual meeting.  Thus the term of the appointee (who will begin office now) will never overlap with the term of the newly elected board.

I could be wrong, but that's the result of my best gleaning effort.

This seems correct, but I don't think the OP's question is asking about the board members which will be elected and take office next year. Rather, I think the question is about the board members which have already been elected and will be taking office at the end of the upcoming annual meeting.

The situation we have here is as follows:

• New board members have been elected but, under the organization's bylaws, they do not take office until the close of the annual meeting.
• A board member has submitted a resignation to be effective upon the close of the annual meeting. (Such a situation might arise due to staggered terms or because the board member in question was re-elected.)
• The question is whether the President may make an appointment to fill the vacancy and the board can ratify such an appointment prior to the newly elected board members taking office.

As I have previously stated, while it is generally in order to make an appointment for a resignation which has been accepted but is not yet effective (with the understanding that the appointment is not effective until the resignation takes effect), I am not certain it is proper to do so in a case where the resignation in question will not take effect until after the terms of the persons authorized to fill the vacancy will end.

Assuming it is somehow proper to do so, however, I am in agreement that the person appointed to fill this vacancy will continue to serve until the close of the annual meeting following the election next spring.

Edited October 27, 2022 at 11:06 AM by Josh Martin