Best way to fill a board vacancy by resignation

[Carla Cole]

Our Association put a call for candidates out to the membership and was notified there are three seats up for election as the directors' term has expired.   A board member whose term is not up until 2024 resigned the night before the Call of Candidates deadline.  The Community Manager wants to change the ballot to 4 instead of the three that was noticed to the membership.  Our Governing Docs state:  At each annual meeting of the members, the members shall elect a new director to fill each vacancy created by the expiration of a prior Directors' term of Office.  The attorney gave two options; one is to appoint a homeowner to fill the vacancy after the elections or, change the ballot to 4 and let the membership vote.  

My issue is changing the ballot from what was sent to the homeowners and resignation should be an appointed position is not up for re-election until next year.   I am trying to find if this is addressed in RRofOrder.

 

[Gary Novosielski]

The answer will depend on what your bylaws say about filling vacancies, i.e., other than the normal end of terms.  I  see no quote marks around that bylaws language, so I assume it is a paraphrase, and so less useful.

There is nothing particularly offensive about adding that name to the ballot, except that I can't see why the attorney believes it would comport with your bylaws.  And that's what matters.  From your paraphrase that would seem to violate the bylaws.

As for an appointment, by whom does the attorney say such an appointment can be made?  Is your board given this power by the bylaws?  Alternatively, is the board given general power over the affairs of the association between meetings of the association?  If either is true, then the board could appoint someone to fill out the remaining term of office for the resigning director.  

If the rules in RONR apply, mid-term appointments are for the remaining term.  Some organizations provide that they last only until the next election, in which case the ballot would include the unexpired term.  But if you simply add a fourth name, you need to distinguish somehow which candidate (presuming all four achieve a majority) would get the one-year term.  Ordinarily this is done by having a separate line on the ballot for the short term.  Essentially this would amount to a Special Election, which happens to coincide with your regular election.  Do your bylaw require a special election in the case of a mid-term vacancy?

Edited March 29, 2023 at 03:10 PM by Gary Novosielski

[Carla Cole]

Let me clarify; first, thank you for your response.   The By-laws state;   "  At each annual meeting of the members, the members shall elect a new director to fill each vacancy created by the expiration of a prior Directors' term of Office."  Section 11 of our Bylaws on vacancies states:  "If the office of any officer becomes vacant by reason of death, resignation, removal disqualification, or otherwise, the Directors may by vote of a majority of a quorum choose a successor or successors who shall hold office for the unexpired term.  If there be less and a quorum of the Directors, but at least two Directors at the time in office, the Directors may by a majority vote choose a successor or successors who shall hold office for the unexpired term."

Again thank so much for your response,

Carla

[Carla Cole]

Gary:

The appointment would be made by the  Board.  

[Gary Novosielski]

On 3/29/2023 at 11:25 AM, Carla Cole said:

Let me clarify; first, thank you for your response.   The By-laws state;   "  At each annual meeting of the members, the members shall elect a new director to fill each vacancy created by the expiration of a prior Directors' term of Office."  Section 11 of our Bylaws on vacancies states:  "If the office of any officer becomes vacant by reason of death, resignation, removal disqualification, or otherwise, the Directors may by vote of a majority of a quorum choose a successor or successors who shall hold office for the unexpired term.  If there be less and a quorum of the Directors, but at least two Directors at the time in office, the Directors may by a majority vote choose a successor or successors who shall hold office for the unexpired term."

Again thank so much for your response,

Carla

I think the language in the bylaws is quite clear (a refreshing rarity 😀).

The vacant office should be filled by appointment, by majority vote of the board, and the election should be only for expiring terms, as the bylaws explicitly provide.

[Dan Honemann]

On 3/29/2023 at 11:37 AM, Gary Novosielski said:

I think the language in the bylaws is quite clear (a refreshing rarity 😀).

The vacant office should be filled by appointment, by majority vote of the board, and the election should be only for expiring terms, as the bylaws explicitly provide.

I strongly disagree with what is said in the first sentence.

We are told that the bylaws say: "If the office of any officer becomes vacant by reason of death, resignation, removal disqualification, or otherwise, the Directors may by vote of a majority of a quorum choose a successor or successors who shall hold office for the unexpired term.  If there be less and a quorum of the Directors, but at least two Directors at the time in office, the Directors may by a majority vote choose a successor or successors who shall hold office for the unexpired term."

On the face of it, this would appear to mean that if the board consists of (say) 11 members, with 6 constituting a quorum, only 4 affirmative votes will be required for election, no matter what.

[Josh Martin]

On 3/29/2023 at 9:40 AM, Carla Cole said:

Our Association put a call for candidates out to the membership and was notified there are three seats up for election as the directors' term has expired.   A board member whose term is not up until 2024 resigned the night before the Call of Candidates deadline.  The Community Manager wants to change the ballot to 4 instead of the three that was noticed to the membership.  Our Governing Docs state:  At each annual meeting of the members, the members shall elect a new director to fill each vacancy created by the expiration of a prior Directors' term of Office.  The attorney gave two options; one is to appoint a homeowner to fill the vacancy after the elections or, change the ballot to 4 and let the membership vote.  

My issue is changing the ballot from what was sent to the homeowners and resignation should be an appointed position is not up for re-election until next year.   I am trying to find if this is addressed in RRofOrder.

I am inclined to agree with the attorney on this matter. If a position is vacant at the time that regular elections occur, I believe it is in order (but not required) to fill the vacancy alongside the regular elections, even if the bylaws grant the board the authority to fill vacancies. Even if it were interpreted that this is not permissible, there is certainly nothing preventing the board from seeking the membership's opinion on this matter, and then choosing to act in accordance with that opinion.

I concur with Mr. Novosielski, however, that in any event, the person appointed to fill the vacancy will only serve until the expiration of the current term (not a full three year term). As a result, if the position is placed on the ballot, the position will need to be listed separately from the others.

[Dan Honemann]

On 3/29/2023 at 12:01 PM, Josh Martin said:

As a result, if the position is placed on the ballot, the position will need to be listed separately from the others.

Not necessarily.  See RONR, 12th ed., 46:34.

[Gary Novosielski]

On 3/29/2023 at 11:52 AM, Dan Honemann said:

I strongly disagree with what is said in the first sentence.

We are told that the bylaws say: "If the office of any officer becomes vacant by reason of death, resignation, removal disqualification, or otherwise, the Directors may by vote of a majority of a quorum choose a successor or successors who shall hold office for the unexpired term.  If there be less and a quorum of the Directors, but at least two Directors at the time in office, the Directors may by a majority vote choose a successor or successors who shall hold office for the unexpired term."

On the face of it, this would appear to mean that if the board consists of (say) 11 members, with 6 constituting a quorum, only 4 affirmative votes will be required for election, no matter what.

You're right, I glossed over the "of a quorum" phrase which rears its head in many bylaws, and I believe, a sketchy SCOTUS opinion.  It seems an attempt was being made to allow action in the event that achieving a proper quorum was impossible.  But you're right, that phrase does take the gleam off that sentence. 

I must have been rendered giddy by the fact that the bylaws clearly stated that elections applied only to terms ending naturally, that the board was clearly identified as the body empowered to fill vacancies, and that such appointments definitely lasted until the end of the original term.  So close, so close.