new Board

if she quits - she quits

if she is 'cherry picking' the bod, do you want her in the first place ?

If the individual quits before or at the meeting in which the ballots are counted, the person received the next highest votes would be elected. IF the individuals after the annual meeting or meeting in which the votes are counted, then the board has the opportunity to appoint a replacement, as they are no longer bound by the results of the election.

If your bylaws require a 5-person board, then you should not have only 4.

If someone wishes to vote for a person knowing that they may refuse the seat if elected, then the risk of losing a voice is their own. They would be wise to vote for someone who is a bit less fickle. It is not your job to protect your members from voting foolishly.

As Fred pointed out, it would normally be protocol to appoint candidate #6, but we all know that's doesn't always happens, and as you point out, there may be the suspicion of a conflict of interest.

That being said, you could go with a board of 4, but remember, in California, if the board fails to appoint a fifth, the members have the power to call for an election to vote for the fifth member.

My advise..Run like hell

Marion, I agree with Richard's 1st reply to you. See if you can persuade that candidate who now doesn't want to serve if she will accept the position as director and later resign.

That way, the Board can choose someone other than #6. If you're then on the Board, you might be able to convince a majority to pick someone who's willing & able whom you all (including the woman who doesn't want to serve) think is suitable.

Check your documents (probably your bylaws) first to make sure that it is the Board who appoints individuals to fill vacancies.

With a majority, perhaps you'll be able to get the developer to turn over documents to you that you're entitled to have. Vote to require that he do that at an open meeting so that other owners in attendance can witness the Board's action.

The Board, of course, also can vote to interview other management companies. The new Board, in addition, can demand that Mr. Developer recuse himself when you tie action of any agenda item that is a conflict of interest. Let's say, for instance, the board does want to interview management companies. Mr. Dev. should not be permitted to vote on that motion!

I do think, too, that the new vote needs to vote to hire an auditor to see where your HOA stands financially.

(I take it given your HOA's age that the developer no longer is in control. Is that right?)

CarolR, That was our plan. By demanding an election (and it took two years to accomplish) that was 10 years too late... we get to fill two vacant positions. Of the three current members, two have had enough and are not running again, the remaining member is the developer, management co, and handles all finances.
The HOA should be the governing body but the developer in fact has had full control always. There were some units never sold and many owners who defaulted. All of those units are being rented out by the developer with no accounting to the HOA. We have had no financial reports at all in almost 10 years... we believe the property has no liability insurance now or for probably the past 15 years - which resulted in a lawsuit against the development with a default judgment which was passed onto the HOA many years ago. Prior to 2013, the HOA dues were collected by an individual who had been involved in the development in one form or another since at least 1990. She was also a travel agent who used the HOA list as a client list for her business to solicit flights, accommodations, tours, etc. She was relieved of her duties in 2012, proceeded to maintain her travel agency for another year. During that time, she confirmed travel for hundreds of clients who eventually found that their money had been taken and they had nothing. She filed bankruptcy in Oct 2013 with an admitted creditors list totaling over $1,000,000.00. One particular creditor was listed as being owed $20,000.00 when in fact he was owed $188,000.00 (he was a travel agency consolidator who had been given forged credit cards). He simply refunded all credit card owners as he was advised of the true owner. This woman admits to owing our HOA $82,000.00 in dues which she did not forward as she collected them. At the bankruptcy hearing she stated under oath that she had an 'arrangement' with the developer - and that he was aware those monies were not being forwarded. She was never bonded as the by-laws demanded and we will never see a penny of that money we fear.
The only bright note to this story... I was able to attend her bankruptcy hearings as a creditor and was able to supply the trustee with enough facts to prove intentional fraud and disposal of her wealth just prior to her filing bk. Her bk filing was denied and she will always be liable for those debts. We have been unable to secure a prosecution of her as of this date. But it has only been one month since the bk waiver was filed. We know the money exists. But without a prosecution we are tied.
Back to the HOA... we know legal action against the developer is a must - he is very elderly - and we simply need so much guidance. We are only beginning this adventure to regain control, we hope.

Carol, We do not know how many units are left unsold, nor do we know how many have gone into default... without the owners list which we have been denied, we cannot determine that. What we do know is that the travel agent I spoke of was one of those aiding in the renting out of the vacant units and much of the rental money was kept by her as well.
I will re-check the by-laws for the sell-out number for HOA control.

I'm sorry to point this out, however this approach is why HOA boards get the bad rep they do. It's inside maneuvering and if the board is breaking the law, then there are options available, least of which is the police should be called. It's this type of "below board" actions that leads to BS that so many people deplore regarding how the board makes decisions. It will only look like a power hungry move by a power hungry board when it gets out.

Nature takes care of itself if human beings would just leave it the heck alone. We have proven that within our own HOA after being forced to let someone back on that we had "removed". It was difficult, it was awkward it was a huge hold up for hour HOA, but within three or four months, they resigned, and we did everything above board.

I'm not trying to be considered an HOA saint here, I still consider myself a newbie, however, I am trying to fight the awful reputation that board members get.

A litmus test that I have been learning to use is whether or not the boards action or reaction of any one issue can be published on the front page of the local paper. Would this board member post this idea of how to get around one person's action or reaction?

How many owners in you HOA need to vote for directors to achieve quorum, Marion? In our HOA it's 25% of Owners. This should be in your bylaws or maybe CC&Rs.

In CA, you also should have "Election Rules" but given what you've written about the so called Board, I suspect you do not.

Are you sure you're conducting your election legally in CA? The legislation that shows requirements for HOA elections is in the Davis-Stirling Act. Visit davis-stirling.com and go to "Elections." The site was set up by HOA attorneys and there's a whole lot more on it about the kinds of problems your Board has caused for you and other homeowners.

It might not be a "sell-out number" that determines if the developer/declarant still is in control. sometimes, it's a date. Units that went into default that he bought back do not count toads his sell-out number.

On various threads, others have advised folks to go to the county hall of records to see who owns each lot/unit. They've pointed out those records might not be up to date, but it might be your best shot though time is running out. How do you even knew who received ballots????

JoK, when Marion & I have said that her Board has been acting illegally, it's not the kind of lawbreaking where one calls the police as you suggest. There are lots of HOA laws in CA that should protect owners. One, for example, is that upon written request, the Board or its agent should give an owner a list of unit/low owners. Also an annual budget should be sent to owners every year, etc., etc. Marion's Board has ignored those laws.

A new Board who'll follow the laws and Marion's governing docs can cure these problems. If she & other owners, on the other hand, try some kinds of legal action it can take months or years and cost everyone in the HOA money.

Having said that though, Marion, it seems to me that you and a few others should pool some funds and get advice from an HOA attorney. I'm not saying you should sue; just get some advice. One visit might cost $250-350.

But again, how many lots/units are in your HOA?

one accepts the nomination

after one is elected, one quits the position

if she quits the new BOD is empowered to fill her spot by appointment

they probably 'should' choose the next candidate who was on the ballot

IMO

I doubt that Marion's bylaws or CA Civil or Corps. Codes state that the Board "must" or even "should" appoint the next highest vote-getter.

We had a very lopsided election a few years ago. Two open spots: Top 2 vote getters each received around 80 votes. 3 & 4 received something like 12 & 14 respectively. Both were new to our HOA and hadn't even bothered to attend Board meetings, seek to be appointed to committees, etc. I'm certain our board would'e proceeded as I and maybe one or two others have suggested.

For me, JoK, the real "litmus test" is what best serves the HOA. Remember that it's in terrible shape!