A Pop quizz"

Five member Board, to reach Qurom over fifty% attending. Is quorum then 3 out of five or 3/5ths or both.

1 member resigns, Board elects not to select a new member and never asked for volunteers from the qualified owners. In fact the decision not to fill the position was discussed and voted on by the Board.

#1 question, does that vacancy have to be offered to the membership?

#2 Does the board have the authority to not fill the vacancy ?,

#3 With a five member board a quorum is 3/5 of the Board. One drops off and is not, filled then a quorum becomes 3 out of four or 75 %. Is there authority for this to happen or does the over fifty% make both the 3/5ths and the 75% equal.

It appears that the referenced Bylaw is from a local city government rather than an HOA.

To all,
I assure you this by-law is copied from my condo by-laws.

Where are you coming from Richard? Do you see a demon behind EVERY tree?

Robert, the BOD might decide not to appoint someone if it was close the Annual meeting to allow the H/O’s to fill the vacancy. If it is not close and you can get enough signatures (I know you have a lot of absentee owners) you could call a special meeting for the purpose of electing someone.

Robert,

Here is my opinion:

Question #1: No. The bylaws are very clear that a vacancy ". . .caused by any ther reason than the removal of a Director by the members of the Council" SHALL be filled by a majority vote of the remaining members, meaning members of the Council (BOD).

Question#2: No, because the bylaws state "shall be filled" meaning they have no choice but to fill the vacancy.

Question #3: The quorum for a 4-member and 5-member board is 3, which is a majority of the board.

Just because the vote or any mention of a vote taking place was not recorded in the minutes does not mean it didn't happen. I've seen and heard minutes that were very much incomplete yet no board member motioned to amend them and they were approved as written. This happens all too often, it's sad to say!

If your docs call for open meetings, then, yes a notice of a meeting for the purpose of carrying out this action would be required. It depends upon what your docs and/or state law say about noticing board meetings. In AZ, a notice is required for ALL meetings of the assn.

Robert,

In my opinion, based on what you provided and the expectation that the term council is the same as the membership:

1. Per the bylaws the vacancy must be filled [i.e.: shall] by the rest of the Board unless the vacancy occurred due to a recall.

2. Per the bylaws, the option of leaving it vacant can only be done if the vacancy was due to a recall. This is because if a recall occurred the Council (membership) elects a new Director at the next annual meeting.

3. 50% plus 1 for a five person or a four person board is still 3. Therefore, the question doesn't make sense to me. Based on your bylaws, I get the implication that there must be a five person board (even if the seat is vacant). Therefore, a quorum would always be three. Hence the wording in they bylaws:

"even though they may constitute less than a quroum . . ."

4 (additional question on recording): A vote should have been taken and recorded. If a majority was not reached, additional candidates should have been sought.

Side Notes: As long as there is a quorum of three, business can be legally accomplished by the Board. This fact is irregardless of the seat being vacant or not.

Your bylaws did not mention any requirement to advertise for candidates or any provide a time period to fill the vacancy (except for a recall which is then at the next annual meeting of the council). Therefore, the board could have a search committee (or just look for possible candidates on their own) and until a candidate is located no vote would be required or mentioned in the minutes. If this is done, the Board can be technically in compliance with your bylaws. Certainly a scummy thing to do but probably legal.

At least that's my take on it.

Tim