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Resignation

Started by HeleneN • 33 replies • 3311 views

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HeleneN (Connecticut)
Posts: 84
Posted:

The Pres. of our board will be resigning as of August 1. Does that resignation have to be officially accepted before the remaining board members can fill that vacancy? A motion to accept the resignation will probably be defeated by an even split in the votes. The nay votes want that vacancy to remain vacant until the Annual Meeting in Nov. at which time the membership will fill all vacancies.

I have never heard of not accepting a resignation and can't seem to find anything in Roberts Rules.

If it's not accepted will that person still be on the board and just treated as absent at the remaining board meetings until her term expires in Nov ?

Thanks again.

Helene
SheliaH (Indiana)
Posts: 6,964
Posted:
Im not an expert on Robert Rules, but I've heard a board doesn't have to accept a member's resignation. Usually this is done because there's no one available to fill it. I suppose the member would be duty bound to stay until her replacement is appointed or elected, but as a practical matter, he may simply choose not to participate and then where will you be?

Is there anything wrong with the vice president stepping in until the annual meeting? The only problem I see is if you have an even number of people left and votes come down to a split - unless the interim president doesn't vote. Could you talk the president into staying - she might agree to it if the vice president assumes the top spot until the elections?
If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
CarolR11 (Colorado)
Posts: 2,563
Posted:
Our bylaws state that a director's (or officer's) resignation is effective on the date that the resignee specifies in writing. Could be "immediately"; could be "Effective Aug. 1, 2013," etc. In our HOA, the resignation must be addressed to the Board president, secretary, or Prop. mgr. There is NO NEED for the board to accept the resignation.

Our bylaws reiterate the language in Calif. Corporations Code.

So, Helene, check those materials for your answer.

Those materials also probably will tell you how vacancies must be filled in such cases, whether or not the board must, or may wait, or if the membership may elect someone.
CarolR11 (Colorado)
Posts: 2,563
Posted:
Our bylaws state that a director's (or officer's) resignation is effective on the date that the resignee specifies in writing. Could be "immediately"; could be "Effective Aug. 1, 2013," etc. In our HOA, the resignation must be addressed to the Board president, secretary, or Prop. mgr. There is NO NEED for the board to accept the resignation.

Our bylaws reiterate the language in Calif. Corporations Code.

So, Helene, check those materials for your answer.

Those materials also probably will tell you how vacancies must be filled in such cases, whether or not the board must, or may wait, or if the membership may elect someone.
HeleneN (Connecticut)
Posts: 84
Posted:
The resignee is moving out of state and the vice pres. will assume the duties of pres. The question is, must the board officially accept that resignation before they can fill the vacancy? Two board members have been waiting for the opportunity to fill that vacancy with someone who thinks as they do. The other two would prefer to leave that vacancy until the Annual Meeting and leave it up to the membership to fill.

There is a lot of animosity on the board and they all realize that with only four votes anyone of them could prevent anything from getting done. Actually there is probably just one issue that is causing a riff and I'm sure they can set that aside and continue with the remainder of the decisions that must be made. If the position gets filled by the person waiting in the wings it will probably trigger another resignation and maybe 2.

From my point of view it would be better to leave the vacancy until the Annual Meeting and leave it up to the membership.

Helene
CarolR11 (Colorado)
Posts: 2,563
Posted:
Helene, sorry if my reply was unclear. Check your documents, probably your bylaws, to see if the board must "officially accept" the resignation. In my HOA & state, the Board doesn't "accept" it; the person simply resigns.

I don't know about your bylaws & state.
GlenL (Ohio)
Posts: 5,491
Posted:
I quit - No we won't let you.
Studies show that 5 out of 4 people have problems with fractions
MoM1 (Massachusetts)
Posts: 56
Posted:
Once your board member/owner moves out of state, and I am assuming s/he is selling the unit, they can't be on the board in most associations, so voting to accept the resignation will be moot anyway. The most important issue before you now is how to fill the vacancy on the board. Read your governing documents carefully. In some associations it takes a vote of the unit owners to fill a spot. How long before your annual meeting? What is the procedure for calling a special meeting to hold a special election? Can the board make an appointment? This is where the cronyism usually rears its head. You may need to canvass the other unit owners to get them to force a special election so the replacement members is elected.
HeleneN (Connecticut)
Posts: 84
Posted:
The board has the authority to fill the vacancy and 'yes' cronyism will rear it's ugly head. And though the Annual meeting takes place in Nov. there could be damage done before then. Out of the four remaining directors if the two who are opposed to the crony waiting in the wings, the appointment could be defeated. They could get by until the Annual meeting. However, it won't be pleasant. But it hasn't been anyway.

Thanks for understanding the problem.
BruceF1 (Connecticut)
Posts: 2,535
Posted:
Helene,

Since you are in Connecticut, your association is required by the CIOA to follow Roberts Rules. According to Roberts Rules, upon the resignation of a president, the vice-president becomes the president. This means that the vice-president does not merely act as an interim president, the vice-president becomes the president until the next organizational meeting of the board when there is another election of officers. You might say that, in effect, the vice-president becomes the president according to state law. Only if your bylaws specify a different order of succession or a different parliamentary procedure will this not be the case.

Now, as for "accepting" the resignation, that's really sort of humorous and meaningless.

1. You can't make someone do something they refuse to do or is not able to do. If the current president moves out of state he/she can't participate in board meetings, at least, not in person. Furthermore, that person probably no longer meets the qualifications to hold office or even be on the board. So, "accepting" the resignation is meaningless. You have a vacancy on the board anyway.

2. If it is necessary to "accept" the resignation, then, until the resignation is accepted you still have five board members. If the president is also a board member, then the president still has the right to vote until the resignation is accepted. When the motion is made to accept the resignation, the president has the right to vote on that motion because, until the resignation is accepted, the president is still a board member with the right to vote. The president could abstain, but there is no legal or parliamentary requirement to do so. The president has the right to vote regarding his resignation just as a person has the right to vote for himself or herself to be on the board or to hold a particular office. So, of course, the president would vote in favor of accepting the resignation, and if the other four board members are evenly split, then the vote will be 3-2 in favor of accepting the resignation.

So, either way, it's a done deal and the whole thing is meaningless.

As for filling the vacancy, that's a separate, although interesting, issue.

If your bylaws specify a board of exactly five members, then your board must fill the vacancy or the board will be in violation of the bylaws. There can be no vote on whether or not to fill the vacancy. According to Roberts Rules (which by law your board must follow) such a motion would be out of order since it violates the bylaws. There can only be a vote on who should fill the vacancy.

So, if your board is evenly split and two members want to fill the vacancy with a crony, they can't do it as long as the other two members hold out. If a name is placed into nomination and the vote is a tie, then the motion to appoint that individual to fill the vacancy fails. The board will have to keep nominating individuals to fill the vacancy until at least three of them can agree on a person.
JohnB26 (South Carolina)
Posts: 1,569
Posted:
... life, liberty, and the pursuit of happiness ...

once the resignation has been tendered it is effective as of the 'record date'

there is NO LONGER INVOLUNTARY SERVITUDE in effect

now, you may want to RECORD said resignation in the minutes for record-keeping purposes, but, you have no reason or obligation to accept it as it IS BINDING OMCE TENDERED ... you had better believe the 'tenderer' has some proof of its existence

what is your issue? the do nothing VP is upset ? other issues ?
HeleneN (Connecticut)
Posts: 84
Posted:
Thanks for all your advice and comments. All but the snarky ones!!!

This is the current situation. Yesterday the pres. tendered her resignation effective Aug. 1st. The next board meeting is scheduled for Aug. 9th. Since no formal action was taken I guess we still have a 5 member board.

Our By-Laws specify a 5 member board, 3 of whom must be owners. In the absence of the pres. the Vice Pres. shall perform the duties of the Pres.

Though some of you may find this humorous and meaningless it seems to serve a purpose. We have a 5 member board, the Pres. is not in attendance, the Vice Pres. shall preside, and officially there is no vacancy until the Pres./director's term expires at the next Annual Meeting in November.
Some of us want it that way.

I'm not sure how meaningful a violation of the By-Laws would be if we did only had a 4 member board. I guess someone could always challenge a vote taken during that time. What is the penalty for violating the By-Laws?? AS many of you know it's not always easy to fill a vacancy, even at the Annual Meeting.

I'm always in a learning mode, Bruce!
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Hold on. I read your statement again... The President will not be in attendance and the Vice-President will be taking over the meetings. This does NOT make that position of VP taking the place of the President. The VP's position responsibility is to take over the meeting IF the president can not attend. It does NOT mean they become President. That is a bit confusing and must be read correctly in your documents. I have a feeling that may be the situation here. Taking over the position of President comes from the existing board members to vote one of you all in. Then you can appoint a new board member to fill that spot.

There are no "penalties" for violating any rules if you did not write the penalties into your documents. That is the irony in many HOA's. They have the ability to fine but no definition of what the fine is for/cost. There is no "HOA jail". A HOA is managed by it's members for it's members. So you all do what it takes to make things work the best way you want them to for your HOA.

Your punishment for not following a by-law? It is hearing that you did every single day from a member that you all did...
Former HOA President
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Helen

Typically when there is a BOD vacancy, the BOD can vote on someone to fill the position until the next election. In your case the appointee would have to get 3 of 4 BOD votes to fill the vacant BOD position. Remember they do fill the vacant officer position, just the vacant BOD position.

HeleneN (Connecticut)
Posts: 84
Posted:
Melissa

Sorry if there is any confusion.

According to our By-Laws, Quote: " The Vice President shall take the place of the President and perform his or her duties whenever the President is absent or unable to act".

I don't read that as becoming the president.

However, if the pres.'s resignation had been acted upon the Vice President would automatically become Pres. for the unexpired term. That's according to Robert's Rules of Order. But then it goes on to say 'although in many instances the vice-president will be the logical nominee for president, the society should have the freedom to make its own choice and to elect the most promising candidate at that particular time'.

Sounds like a little double talk to me.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Helen

If the BOD appoints one to fill the vacant position, then it would not be out of order for a BOD Member to make a Motion to hold a new officer election. It would need a 2nd to even be voted on and it would need 3 of the 5 voting yes for it to pass.

I do not see any issues/conflicts.
CarolR11 (Colorado)
Posts: 2,563
Posted:
John46 is right, Helene. The VP performs all of the duties of the president once the president's resignation becomes effective. You're right, Helene, the VP does not become the prez unless your Board votes for that. If the Board wishes, it may elect a different owner/director to be president.

Your bylaws supersede or trump Robert's. Robert's generally is used when an HOA's governing docs are silent about a matter.

And, Helene, if your docs say the president's resignation doesn't need to be "acted on" or "accepted" then that's the end of it. You DO have a vacancy whether or not you & some others don't want it! Again, your docs trump Robert's.

Your HOA, Helene, always will have a 5-member Board unless your bylaws are changed (usually) by owner vote even if one or more spots are vacant.

I think it's the two-year terms that might be confusing? No one must serve the two years and officers can resign for the officer position, but stay on the Board, etc.

The "HOA cops" may be owners themselves who might rally to demand that the vacant spot be filled. If like our bylaws, yours may even say that the owners can vote in a new director is the board refuses to act.
BruceF1 (Connecticut)
Posts: 2,535
Posted:
Quote:
Posted By MelissaP1 on 07/13/2013 7:27 AM
Hold on. I read your statement again... The President will not be in attendance and the Vice-President will be taking over the meetings. This does NOT make that position of VP taking the place of the President.

In Connecticut, it does, unless the Bylaws say otherwise.
BruceF1 (Connecticut)
Posts: 2,535
Posted:
Quote:
Posted By HeleneN on 07/13/2013 8:17 AM
Mut then it goes on to say 'although in many instances the vice-president will be the logical nominee for president, the society should have the freedom to make its own choice and to elect the most promising candidate at that particular time'.

Sounds like a little double talk to me.

You are quoting that paragraph out of context. That paragraph presupposes that the bylaws provides for such a nomination to take place. The section preceding the paragraph you quoted states:

"In case of the resignation or death of the president, the vice-president (if there is only one) or the first vice-president (f there are more than one) automatically becomes president for the unexpired term, unless the bylaws expressly provide otherwise for filling a vacancy in the office of president." (Emphasis Roberts, not mine).

From what you quoted from your bylaws, your bylaws do not appear to expressly provide otherwise for filling a vacancy in the office of president.

Since state law requires Connecticut common interest communities to adhere to Roberts Rules, that is the operative paragraph regardless of how things may be done in associations in other states.
CarolR11 (Colorado)
Posts: 2,563
Posted:
So, based on Bruce's reply, that seems to be the question, Helene: Do your bylaws provide for fill the vacant office of president?? Or not??
HeleneN (Connecticut)
Posts: 84
Posted:
Carol, it only provides for filling the vacancy of a director.(all of our officers are directors also) And it says may be filled by the Executive Board, not must!

It provides for the Vice-Pres. to take the place of the Pres. whenever the president is absent or unable to act. (I take that as away or ill) If the board has accepted the resignation then we would defer to Robert's Rules and the Vice-Pres. would automatically become Pres.

If the board did not act upon the resignation I don't see why we can't wait it out until the Annual Meeting when the term will expire.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Helen

What are you advocating the BOD do and why?
CarolR11 (Colorado)
Posts: 2,563
Posted:
But, Helene, do you bylaws say that the Board must act or accept the resignation? If silent, and if your state's corporations code is silent, you'd turn to Robert's.

I agree that you can wait if your bylaws don't said that you must or "shall" fill the vacancy. But, still, what do your state's corp. codes say? I don't recall you mentioning that. Or are you not incorporated?
JohnB26 (South Carolina)
Posts: 1,569
Posted:
if the corp can not form a BOD according to its own by-laws .... any member would have a prima facia case for a court appointed receiver to be appointed

the president has quit ~ he is gone ~ deal with it

tough love

but

CAVEAT EMPTOR
DaveD3 (Michigan)
Posts: 796
Posted:
Helene,
You clearly are opposed to the Vice Pres becoming Pres and are looking for support to prevent that from happening by default. Why?

And if your board doesn't "act on" the resignation, what is your reply when someone asks who the president is? Do you tell them "Well, Bob is technically the president, but he resigned and moved away, but we didn't accept his resignation, so he's still president, but just absent, so out VP is just ACTING as president in his place"?

He resigns, he's gone. You now have a vacancy on the board.
Per Roberts Rules it seems as though your vice pres IS the president when that resignation becomes effective.

Read Bruce's comment again (quote below). If he's correct, the VP becomes the Pres until the next organizational meeting. So Bob resigns August 1st, Jim the former VP is now the president. Your next meeting is on Sept 1st at which time you nominate/elect new directors. So Jim's term may be for one month. Also at that meeting on Sept 1, you nominate and appoint someone to fill the vacancy.

If you're concerned, have the president call a meeting for the day after the Of course, the new president could cancel the meeting.

At which point, WHY DOES IT MATTER whether the VP is the "acting" president, able to do EVERYTHING that the president may normally do, or if he becomes the president? What do you think you're preventing by calling it one rather than the other?

Quote:
Posted By BruceF1 on 07/12/2013 6:38 AM
Helene,

Since you are in Connecticut, your association is required by the CIOA to follow Roberts Rules. According to Roberts Rules, upon the resignation of a president, the vice-president becomes the president. This means that the vice-president does not merely act as an interim president, the vice-president becomes the president until the next organizational meeting of the board when there is another election of officers. You might say that, in effect, the vice-president becomes the president according to state law. Only if your bylaws specify a different order of succession or a different parliamentary procedure will this not be the case.

Now, as for "accepting" the resignation, that's really sort of humorous and meaningless.

1. You can't make someone do something they refuse to do or is not able to do. If the current president moves out of state he/she can't participate in board meetings, at least, not in person. Furthermore, that person probably no longer meets the qualifications to hold office or even be on the board. So, "accepting" the resignation is meaningless. You have a vacancy on the board anyway.

2. If it is necessary to "accept" the resignation, then, until the resignation is accepted you still have five board members. If the president is also a board member, then the president still has the right to vote until the resignation is accepted. When the motion is made to accept the resignation, the president has the right to vote on that motion because, until the resignation is accepted, the president is still a board member with the right to vote. The president could abstain, but there is no legal or parliamentary requirement to do so. The president has the right to vote regarding his resignation just as a person has the right to vote for himself or herself to be on the board or to hold a particular office. So, of course, the president would vote in favor of accepting the resignation, and if the other four board members are evenly split, then the vote will be 3-2 in favor of accepting the resignation.

So, either way, it's a done deal and the whole thing is meaningless.

As for filling the vacancy, that's a separate, although interesting, issue.

If your bylaws specify a board of exactly five members, then your board must fill the vacancy or the board will be in violation of the bylaws. There can be no vote on whether or not to fill the vacancy. According to Roberts Rules (which by law your board must follow) such a motion would be out of order since it violates the bylaws. There can only be a vote on who should fill the vacancy.

So, if your board is evenly split and two members want to fill the vacancy with a crony, they can't do it as long as the other two members hold out. If a name is placed into nomination and the vote is a tie, then the motion to appoint that individual to fill the vacancy fails. The board will have to keep nominating individuals to fill the vacancy until at least three of them can agree on a person.

BruceF1 (Connecticut)
Posts: 2,535
Posted:
Quote:
Posted By HeleneN on 07/13/2013 1:19 PM
Carol, it only provides for filling the vacancy of a director.(all of our officers are directors also) And it says may be filled by the Executive Board, not must!

If the board did not act upon the resignation I don't see why we can't wait it out until the Annual Meeting when the term will expire.

Again, you are taking a bylaw provision out of context.

"And it says it (the director vacancy) may be filled by the Executive Board, not must!"

That statement tells you how the vacancy can be filled, not whether or not it has to be filled.

Somewhere else in your bylaws, probably at the very beginning of the section on the Executive Board, there should be a statement that defines what the size of the executive board is.

If it states something like "The executive board shall be comprised of five members" then your board must have exactly five members or the bylaws are being violated. Based on your statement, the board vacancy could be filled by the executive board itself, but it doesn't have to be. The vacancy could also be filled by some other means, such as a special election. But, either way, the vacancy needs to be filled to be in compliance with the bylaws.

On the other hand, if the bylaws define the board as being comprised of something like "no less that three, and no more than five members" then the vacancy would not need to be filled to remain in compliance with the bylaws.

Now, as a practical matter, it would take some time to arrange a special election and perhaps such a special election would end up taking place about as the same time as the regular annual meeting since it is so close.

The important thing here is to try to avoid taking sentences or paragraphs from a document, such as bylaws, out of context. When read by themselves they can take on a different meaning than when considered in the light of the rest of the document. Only the bylaws (or any other document, such as a law, the Declaration, or Roberts Rules) taken in its entirety has any meaning.
CarolR11 (Colorado)
Posts: 2,563
Posted:
Bruce wrote:
"The important thing here is to try to avoid taking sentences or paragraphs from a document, such as bylaws, out of context. When read by themselves they can take on a different meaning than when considered in the light of the rest of the document. Only the bylaws (or any other document, such as a law, the Declaration, or Roberts Rules) taken in its entirety has any meaning."

Since it's Sunday, Amen! to Bruce's remarks above. Context is hugely important.
HeleneN (Connecticut)
Posts: 84
Posted:
Thanks!

And yes, yes, yes. I'm aware that the By-Laws say "may" fill the vacancy and not "must". And yes, once the pres's. resignation is accepted the vice-pres. will automatically become pres. Contrary to what someone thought I am not against that. It's the crony waiting in the wings. JohnC got it right! With a 2 to 2 vote the vacancy probably won't get filled. And "yes" our by-laws say the board shall consist of 5 directors. Bruce says we will be in violation if we don't fill it . So be it! It will only be for two months as the pres. will stay on until the Aug. 9 board meeting. The field of candidates will be more to every ones liking including the unit owners( except for the 2 board members who want their pal on the board)You might think that not much can go wrong in 2 months but let me assure you it can and will.

That's all!
DaveD3 (Michigan)
Posts: 796
Posted:
Now I'm thoroughly confused. Why all the fuss about accepting the resignation if you're just going to have an election in 2 months? Pres resigns, VP becomes pres, you have a 4 member board and elections in 2 months. How many of the 5 are up for election? Are you 3/2 elected in alternate years?

imho, and while it may technically be contrary to the bylaws, the board is perfectly a-ok to say that with the election so close there is no practical reason to appoint someone for a term that is under 2 months in length. Call it a special election to be held in conjunction with the normal election if you want.

JohnC46 (South Carolina)
Posts: 14,265
Posted:
Dave

The reason is Helen does not like the person that will become Pres. She is looking for ways around it. Some call it having an agenda. Helen has an agenda. Prevent the VP from becoming Pres. because she does not like him. He is a "crony".

CarolR11 (Colorado)
Posts: 2,563
Posted:
Unless it's buried in this thread somewhere, I don't recall Helene ever telling us that the resignation "must" be accepted by the board, or "acted on" by the Board per your bylaws or your state's corporations code. I don't know why Helene keeps talking about 'accepting" this resignation. In aditon, the November election could be 4 months away if it's at the end of Nov.

I can understand why Helene & want to delay, but I son't support their attempts to circumvent standard procedures.
DaveD3 (Michigan)
Posts: 796
Posted:
Quote:
Posted By JohnC46 on 07/14/2013 4:28 PM
Dave

The reason is Helen does not like the person that will become Pres. She is looking for ways around it. Some call it having an agenda. Helen has an agenda. Prevent the VP from becoming Pres. because she does not like him. He is a "crony".


Yet there is acknowledgement that the VP will become, or will be the acting, or will perform the duties or, or whatever... of the president. So it makes no difference. He will be president, acting or otherwise, whether she likes it or not.

IN our bylaws, when a vacancy occurs, a person is appointed for the remainder of that term. So if the president's term was ending in October, the vacancy would be filled by an appointee for 2-3 months. Unless being an incumbent of 2 months is worth a lot in a re-election, I don't see much how that decision matters either. Yes, a lot can happen in 2 months, but I'm not seeing justification for the fear.
HeleneN (Connecticut)
Posts: 84
Posted:
Give it up!

And "no", I'm not against the vice-pres. becoming pres. I think she is well qualified.
DaveD3 (Michigan)
Posts: 796
Posted:
Then why the question of whether or not the board needs to accept or act on the resignation?

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