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Increasing board size

Started by AldaP • 9 replies • 1889 views

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AldaP (California)
Posts: 3
Posted:
We had an election and one of the board members didn't get his nomination letter by the deadline and the President of the Board says she can appoint him increasing to six members instead of six. Our ByLaws do not address how many board members there should be except there has been five for at least 15 years. The wording reads as follows regarding vacancies:
A vacancy on the Board shall be deemed to exist in the case of the resignation, removal or death of any director or if the authorized number of directors is increased or if the members fail, in any election for director or directors to elect the full authorized number of directors to be voted for in such election.

I would like some input on this and I thank you.
CarolR11 (Colorado)
Posts: 2,563
Posted:
Welcome to the forum, Alda. I'm not connected to the legal profession in any way, but your bylaws probably say the the Board makes decisions about these matters--NOT the president alone. It's unusual that none of your documents state the size of your Board. Review your Articles of Incorporation too--might be there.

Generally Boards are an odd number to avoid tie votes. By the way, how responsible is this person if he can't turn in his nomination letter on time?

What size is your HOA, Alda?
RichardP13 (California)
Posts: 1,767
Posted:
Alda

There should be a section in your Bylaws under the article titled "Directors". General the first section deals with the number of directors and possibly a mechanism in which the Board, not the president, has the authority to increase the Board size.

If there is no way to increase the Board, then the individual should have to way until either there is a vacancy or at the next election. You snooze, you lose.
AldaP (California)
Posts: 3
Posted:
Our HOA consists of 18 voting members, we are one of 12 associations in a retirement community. I am not personally against this person being back on the board, however, I also do not want to set up our association to do this again and again when there is nothing to prevent it. I have gone over all the By-Laws and Articles of Incorporation and there is nothing there which determines the size of our board. I haven't gone back in the minutes further than 2001 when there were five board members. We were established in 1985 so perhaps I need to go back further. Would it make a difference if it was in the minutes that the Board would consist of five members? Would this establish without putting it in the By-Laws? Thanks so much.
RichardP13 (California)
Posts: 1,767
Posted:
If you have been operating with 5 Board members, then there must be something somewhere in your governing documents that it came from. language within the Bylaws may give the Board the discretion to increase the size of the Board when the need arises, but with only 18 units, my best educated guess is that it wouldn't allow for more than 5. But, the president cannot do this on their own, it must be a Board decision. Usually a complex of 18 is better served with three Board members.
AldaP (California)
Posts: 3
Posted:
Our By-Laws relative to this situation from 1989 reads: The Board shall be composed of three (revised 12/2/87) (3) persons, unless and until this number is changed in a (Revised 12/6/89) manner authorized by applicable California law.

I take this to mean we have to have a mail ballot to all members to change this. Am I correct?

I could not locate the minutes wherein the Board was changed to 5 members on 12/6/89, but obviously it was because there have been five Board members since that time.
RichardP13 (California)
Posts: 1,767
Posted:
Not actually seeing the Bylaws, I could successfully argue that since the Board has had 5 members since 1989, reflective in the minutes of the corporation, then whether or not it was properly done is a moot point, as the members would or could have challenged long ago.

That being said, appointing a sixth member to the Board can't be done. It would require the membership to vote on an expansion and that number would not be 6, it would be an odd number of 7.
TimB4 (Tennessee)
Posts: 21,059
Posted:
It's possible that the Board just doesn't want to turn anyone away who is willing to help.

They appear to be going at it the wrong way but there are things that they can do, like assign that person to an Officer position (which is a non-voting position).

RichardP13 (California)
Posts: 1,767
Posted:
Tim

If the Bylaws state all officers must be directors, you can't appoint someone as an officer.
TimB4 (Tennessee)
Posts: 21,059
Posted:
True.

The Bylaws I've seen only require that the President and VP also be Directors.

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