Filling HOA board vacancies after recall

[Guest DesertFlower]

Our HOA in Arizona is about to remove two board members.  We have the required signatures on a petition requesting a special meeting of the membership for that purpose.  Our bylaws state that, after a board member is removed "a successor shall then and there be elected to fill the vacancy thereby created."  How will we elect the two new directors?  Will it have to be via nominations from the floor?  Is there a way to have ballots made in advance that contain the names of the two individuals whom most of us prefer as the new directors?  Many of our members leave for the summer and will be voting by absentee ballot -- how will they be able to vote for the new directors if there are nominations from the floor?  Meetings over the summer, when so many are away, are done via Zoom & phone only (not in person).  For this special meeting we will request an in-person meeting as well as Zoom & phone.  In that situation, how should the election of new directors be handled?  

[Josh Martin]

On 6/16/2023 at 2:19 PM, Guest DesertFlower said:

Our bylaws state that, after a board member is removed "a successor shall then and there be elected to fill the vacancy thereby created."  How will we elect the two new directors?  Will it have to be via nominations from the floor?

I don't see another way of doing it, considering that the election has to happen on the spot.

In the long run, it may be advisable to change the bylaws on this matter.

On 6/16/2023 at 2:19 PM, Guest DesertFlower said:

Is there a way to have ballots made in advance that contain the names of the two individuals whom most of us prefer as the new directors?

I don't see how, since it can't be guaranteed that other people won't be nominated, and it seems problematic to take nominations in advance on the assumption that the board members will be removed.

It would seem to me blank slips of paper would be preferable.

On 6/16/2023 at 2:19 PM, Guest DesertFlower said:

Many of our members leave for the summer and will be voting by absentee ballot -- how will they be able to vote for the new directors if there are nominations from the floor?

RONR strongly advises against "mixing and matching" absentee votes and votes at a meeting for reasons exactly like this one.

Indeed, this seems very problematic, even setting aside the nominations piece. If your bylaws in fact provide for voting in this manner, then I suppose members will receive a ballot which includes the votes for removal and then says, "Assuming those board members are removed, which persons do you wish to vote for as board members?"

On 6/16/2023 at 2:19 PM, Guest DesertFlower said:

Meetings over the summer, when so many are away, are done via Zoom & phone only (not in person).  For this special meeting we will request an in-person meeting as well as Zoom & phone.

Well, that seems to solve the "absentee ballot" problem, assuming your bylaws or applicable law permit meetings in this manner. At least all members will be "present" at the meeting one way or another, and will be able to know which persons have been nominated.

On 6/16/2023 at 2:19 PM, Guest DesertFlower said:

In that situation, how should the election of new directors be handled?  

Probably through some sort of online voting system.

[Guest DesertFlower]

Thank you very much, Josh Martin.  I understand what you are saying.  On further review of our bylaws, I see that, although members are allowed to attend board of directors meetings by Zoom or phone (and many do in summertime), there are only two options for voting:  (1) in person or (2) by absentee ballot.  Would it be possible for the ballot -- both for in person voting and for absentee voting -- to read something like this:

1. Remove John Smith from the board of directors  ----- yes / no

2. Remove Jane Jones from the board of directors ----- yes / no

Assuming John Smith and Jane Jones are removed, please vote for NO MORE THAN TWO of the following to fill those vacancies:

1. Elect Susie Sweet to the board of directors ----- yes / no

2. Elect Honest Abe to the board of directors ----- yes / no

3. Elect (write in) ________________________________________ to the board of directors ----- yes / no

4. Elect (write in) ________________________________________ to the board of directors ----- yes / no

[Gary Novosielski]

Voting Yes and No is okay for removal but not for elections.   Replace the Yes/No with a check box.  And for the write in lines, not even that is needed.

I wouldn't say Assuming, either, since it seems to, well, to assume a lot.  I'd use In the event that it becomes necessary to fill vacancies...

Edited June 17, 2023 at 12:42 AM by Gary Novosielski

[Atul Kapur]

On 6/16/2023 at 6:46 PM, Guest DesertFlower said:

On further review of our bylaws, I see that, although members are allowed to attend board of directors meetings by Zoom or phone

You are calling a meeting of the membership, not of the board of directors. What do your bylaws say about that?

[Guest DesertFlower]

Thanks, all. I know that the board must call a special meeting when the petition requesting it is received. But are they required to comply with our request that the ballot include names of individuals who are standing for election to replace them? I wonder if they can say, "Yes, were required to give you a special election to remove us, but we are not going to put our opponents' names on the ballot -- you will have to nominate them from the floor." ??

[Gary Novosielski]

Well, maybe they're right.  Those names had to be nominated somehow to be on the ballot. 

In your scenario, how did those names get on the ballot?

[Guest DesertFlower]

Gary Novosielski, I think you're probably exactly right. The board is not going to place on the ballot names of people who haven't been nominated. (Where did the names come from? These are the people who most members would like to see replace the directors who are being ousted.)

 

Our difficulty is that so many members leave for the summer and cannot be at an in-person meeting for nominations from the floor.

 

I suppose we could omit the two names and simply ask that the ballot include space for write-in votes. Members could then write in the names of the folks they'd like to see take leadership. But the board will refuse that, if they can.

 

There is tremendous dissatisfaction with these two board members (president & treasurer), who, unfortunately it, are making many poor choices in running the association.

[Gary Novosielski]

  

On 6/16/2023 at 11:34 PM, Guest DesertFlower said:

Our difficulty is that so many members leave for the summer and cannot be at an in-person meeting for nominations from the floor.

Why do they need to be present?  It only takes one person to make a nomination.

On 6/16/2023 at 11:34 PM, Guest DesertFlower said:

I suppose we could omit the two names and simply ask that the ballot include space for write-in votes. Members could then write in the names of the folks they'd like to see take leadership. But the board will refuse that, if they can.

Why would the board have any power over a Membership election?  Especially after a recall?  Is that in your bylaws?

[Josh Martin]

On 6/16/2023 at 5:46 PM, Guest DesertFlower said:

Thank you very much, Josh Martin.  I understand what you are saying.  On further review of our bylaws, I see that, although members are allowed to attend board of directors meetings by Zoom or phone (and many do in summertime), there are only two options for voting:  (1) in person or (2) by absentee ballot.  Would it be possible for the ballot -- both for in person voting and for absentee voting -- to read something like this:

1. Remove John Smith from the board of directors  ----- yes / no

2. Remove Jane Jones from the board of directors ----- yes / no

Assuming John Smith and Jane Jones are removed, please vote for NO MORE THAN TWO of the following to fill those vacancies:

1. Elect Susie Sweet to the board of directors ----- yes / no

2. Elect Honest Abe to the board of directors ----- yes / no

3. Elect (write in) ________________________________________ to the board of directors ----- yes / no

4. Elect (write in) ________________________________________ to the board of directors ----- yes / no

I think you have the right idea, however:

• There should not be a "Yes" and "No" for each choice. Rather, there should just be a checkmark.
• It is not clear to me why the names of persons who have not yet been nominated are listed on the ballot.

On 6/16/2023 at 8:43 PM, Guest DesertFlower said:

But are they required to comply with our request that the ballot include names of individuals who are standing for election to replace them?

No, I do not think it is required (or advisable) to comply with a request that a ballot include the names of individuals who have not yet been nominated.

On 6/16/2023 at 8:43 PM, Guest DesertFlower said:

I wonder if they can say, "Yes, were required to give you a special election to remove us, but we are not going to put our opponents' names on the ballot -- you will have to nominate them from the floor."

Yes.

On 6/16/2023 at 10:34 PM, Guest DesertFlower said:

Our difficulty is that so many members leave for the summer and cannot be at an in-person meeting for nominations from the floor.

Yes, your organization clearly has a lot of ill-advised rules, each of which is problematic enough on its own, but are especially problematic when taken together. Your organization apparently has rules which:

• Require vacancies created by removing a board member to be filled immediately
• Requires that members be given an absentee ballot for certain matters, apparently including the elections to fill the vacancies

The interaction of these two rules is creating some unusual circumstances, but the organization is nonetheless obliged to follow the rules as they exist.

On 6/16/2023 at 10:34 PM, Guest DesertFlower said:

I suppose we could omit the two names and simply ask that the ballot include space for write-in votes. Members could then write in the names of the folks they'd like to see take leadership. But the board will refuse that, if they can.

As I understand the facts, the bylaws provide a mechanism for the members to remove board members (and I'll assume for the sake of argument that that process is being followed correctly), provide that an election shall then immediately be held to fill those vacancies, and also require an absentee ballot sent to members for certain matters. With all of this taken together, I am inclined to think the board does not have a choice in the matter of providing the (possible) elections on the ballot, and I don't see a practical way of doing this except providing write-in spaces on the ballot.