Leaving a Vacancy Unfilled on BOD

Hello everyone,

Our by-laws call for a 9 member board. There have been 3 resignations this year. The board has decided that, because of "sensitive issues currently being negotiated" with our property manager, they are not going to be filling the seats on the BOD we currently have until late in the year.

Here's what our by-laws state regarding vacancies:

A vacancy in any office may be filled by appointment of the Board. The officer appointed to such vacancy shall serve for the remainder of the term of the officer he replaces.

The board is saying that because the wording is "may", that they do not have to do within a specific time period, and so can fill the position when they see fit.

I'm honestly not sure if it isn't better to have fewer board members. Too many cooks and all that. But, I just wanted to get some opinions on the idea here.

Because I know I'll be asked I am an homeowner, but am not on the board. We are in condo's and have about 600 units in the community.

Let me clarify my earlier question. Depending on the exact language of the section identifying the number of directors, you might not be required to fill the vacancies.

My Association says that there will be a minimum of 3 and no more than 5. Therefore, if there are vacancies, but we still have three directors on the board, the vacancies are not required to be filled.

Tim

The next election will be at our Annual Meeting in February. I agree that it would be better to have the empty seats filled, but the President stated tonight that they do not intend to fill them until the end of the year. He didn't give a specific time. The Property Manager is the one who said the documents use of the word "may" meant that the positions did not have to be filled within a specific time frame.

I'm not a member of the board, so I don't know what issues would prevent adding the members, only what was stated during our meeting.

Here's what our by-laws state with regard to the number of board members and their term. I added the language on replacing someone who is removed from the board, as it seems to contradict what would happen if someone leaves of their own accord.

Section 1. Number. The affairs of this corporation shall be managed by a Board of nine
directors, who need not be members of the association.

Section 2. Term of Office. At the first annual meeting the members shall elect three directors for a term of one year, three directors for a term of two years and three directors for a term of three years; and at each annual meeting thereafter the members shall elect three directors for a term of three years.

Section 3. Removal. Any director may be removed from the Board, with or without cause, by a majority vote of the members of the Association. In the event of death, resignation or removal of a director, his successor shall be selected by the remaining members of the Board and shall serve for the unexpired term of his predecessor.

A vacancy in any office may be filled by appointment of the Board.
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Many By-laws state ‘may’ and the word ‘may’ is there for a reason. In this instance it could mean that there ‘may’ be an alternative and the vacancy can be filled either by the BOD or by the members. Clearly, the membership did vote for 9 directors and 9 directors must be on the board regardless who fills the vacancy. But, if your president does not want to fill those vacancies nothing ‘may’ convince him. Here is what Florida says:

‘Unless otherwise provided in the bylaws, any vacancy occurring on the board before the expiration of a term may be filled by an affirmative vote of the majority of the remaining directors, even if the remaining directors constitute less than a quorum, or by the sole remaining director. In the alternative, a board may hold an election to fill the vacancy, in which case the election procedures must conform to the requirements of the governing documents. Unless otherwise provided in the bylaws, a board member appointed or elected under this section is appointed for the unexpired term of the seat being filled. Filling vacancies created by recall is governed by s. 720.303(10) and rules adopted by the division.’

6 months is too long for a 9 member board to operate with 6 - especially if you have "sensitive" issues that must be solved.

Makes me wonder what's going on with that 6 member board that they are not willing to bring on some fresh blood.

I'm starting to wonder if the BOD and MC are looking at the by-laws correctly. The three sections I posted together fall under the subheading:

BOARD OF DIRECTORS: SELECTION: TERM OF OFFICE

And the original language I posted, which is where the "may" comes into play, is under the subheading:

OFFICERS AND THEIR DUTIES

To me, if you put both of these pieces together, it sounds like the BOD "may" replace an officer position, but BOD seats "shall" all be filled.

Susan hit on the concern that several members stated last night - what's going on that the 6 current members don't want any more opinions on?

Petunka,

I think Jennifer's OP is a bit confusing on quick reading. I believe she used the word "officer" or "office" when she was referring to vacant director's positions, of which there are three. The bylaws for her association are very clear that directors positions SHALL be filled. Apparently, the property manager is also confused.

Our bylaws read that way, too. Association members elect the directors and directors may be removed only by association members. However, the board can fill vacancies in it's own ranks. I agree, it is strange. So, the association members remove a director and the remaining directors decide who fills the vacancy. Could they fill the vacancy with the same person? I think most associations would remove a director and fill the vacancy at the same time by special election, but our bylaws don't read that way. Fortunately, this issue has never come up in our association.