Hierarchy of Bylaw Rules

Started by DonaldN • 15 replies • 1515 views

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DonaldN (Connecticut)
Posts: 183

Posted:

First the rules :
(1) the Board may fill vacancies in it's membership for the unexpired portion of any term or, if earlier , until the next regularly
scheduled election of Board members.
(2) each person so elected or appointed will be a Board member for the remainder of the term for the member so replaced.

at last year's election meeting which was the earlier occurrence :

(1) service terms were changed from 3 years to 2
(2) a seat on the Board was voted on to replace a vacated seat that had 1 year remaining

Question : Does the new member have a 2 year term or a 1 year term ?

In my judgment the new member would have a 2 year term if the term of the member who quit was expiring last year - but since that member had 1 year remaining then the replacement would have 1 year remaining.

Thanks in advance for your thoughts and responses .

JohnB26 (South Carolina)
Posts: 1,569

Posted:

.......remainder of the term for the member so replaced.

the replacement serves for the above time

TimB4 (Tennessee)
Posts: 21,059

Posted:

Procedural issues are typically covered under corporation laws rather than HOA/COA laws. If your Association is incorporated (most are), then be sure to check the applicable corporate statute for those type of answers.

Since most Associations are incorporated as a nonprofit or nonstock corporate, if you are incorporated, this would likely be the statute (but verify this):

Sec. 33-1085. Terms of directors generally:

(d) The term of a director elected to fill a vacancy expires at the next meeting at which directors are elected

However, since your Bylaws specify that the individual will serve the remainder of the term (meaning the remainder of time the Director would have served had they not resigned or been removed), that individual would serve 1 year.

CarolR11 (Colorado)
Posts: 2,563

Posted:

I believe that Donald has cited his state Corporations code previously on this same question. I'm not going to review those older posts, but perhaps Donald can cite his state code again.

As I recall, though, the appointee serves until whichever is earlier, which sounds to me like the next annual election.

DonaldN (Connecticut)
Posts: 183

Posted:

thanks Tim, John, Carol - Carol, I've given the applicable rules at the beginning of my post - the first is from CT. law & the second from our bylaws.

CarolR11 (Colorado)
Posts: 2,563

Posted:

Thanks for refreshing my memory, Donald. I think you've gotten this same opinion previously, perhaps from Bruce, but I may be wrong: Since (1) is your state law, it trumps your own bylaw (2).

The appointee serves till whichever date is earlier, which it seems to me, will be the next annual election.

Please note, Donald, that neither your state laws or statutes are rules, and neither are your bylaws. (Your HOA probably has some other document called Rules & Regulations. It's best to stick only terming them "rules.")

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Donald

Quite often State Articles of Incorporation will say things like so and so is the method/procedure unless the corporations Bylaws say otherwise.

In your case if the State Articles of Incorporation say until the next election. No caveat like unless Corporation Bylaws say otherwise, that is the answer. End of story. Until the next election.

Bylaws nor Covenants can override laws.

Typical one we see is State Articles of Incorporation going on and on about how to proxy vote but in the end it say, unless otherwise stated in the Corporations Bylaws. Now the Corporation Bylaws say no proxy voting. End of story. Proxy voting not allowed in your association (corporation).

Another common one is local laws say no fences can be over 6 feet tall. Association says fences limited to 4 feet tall. Association wins. Association says fences can be 8 feet tall. Association loses.

Hope this helps

DonaldN (Connecticut)
Posts: 183

Posted:

During fiscal '12-'13 a director quit with 1 year left in his term as of 6/13 - this Board vacancy was filled by appointment until the annual/voting meeting held on 6/13 - also at this meeting the standard term was changed from 3 to 2 years.

Our property manager wants to award the person who won the vote count at the meeting ,for the open position, a 2 year term and I contend that it should be for 1 year, i.e. the remaining term of the director who quit.

In my mind, if the term of the director who quit was expiring on 6/13 , then 2 years.

DonaldN (Connecticut)
Posts: 183

Posted:

Is there a way to edit a post after posting and can attachments be included in a post ??

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Quote:

Posted By DonaldN on 04/13/2014 12:26 PM
During fiscal '12-'13 a director quit with 1 year left in his term as of 6/13 - this Board vacancy was filled by appointment until the annual/voting meeting held on 6/13 - also at this meeting the standard term was changed from 3 to 2 years.

Is the length of a director's term stated in the bylaws?

If so, then

At the meeting when the terms were changed from 3 to 2 years was this done by a vote to amend the bylaws?

If the vote to change the terms from 3 years to 2 years was not done by a vote to amend the bylaws, then the motion was out of order and the vote was invalid. The change is null and void; as if it never happened.

If it was done by a vote to amend the bylaws, was the vote in accordance with the requirements to change to bylaws? Was there a quorum? Was the proper majority (simple majority, 2/3, or whatever is required) achieved? Does a vote to amend the bylaws require a specific advance notice (such as members must be informed before the meeting takes place that such a vote will be taken)? If the vote to amend the bylaws was not done in accordance with the required procedure, then the vote was invalid The change is null and void; as if it never happened.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Quote:

Posted By DonaldN on 04/13/2014 12:30 PM
Is there a way to edit a post after posting and can attachments be included in a post ??

Nope. No way to edit.

Yes, attachments can be made but they are limited to certain file types and there is a size limit. Just click the "Browse" button(s) below where you enter your comments/response.

DonaldN (Connecticut)
Posts: 183

Posted:

Bruce , the term change from 3 to 2 years is another can of worms - the property manager says that it was done last year but I have no recall of that happening - I have asked for documentation .

Either way I contend that a director position will be open for either 2 or 3 years this year - not as of last year .

But again you're correct Bruce - things are very fishy !!!

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Quote:

Posted By DonaldN on 04/13/2014 1:15 PM
Bruce , the term change from 3 to 2 years is another can of worms - the property manager says that it was done last year but I have no recall of that happening - I have asked for documentation .

Either way I contend that a director position will be open for either 2 or 3 years this year - not as of last year .

But again you're correct Bruce - things are very fishy !!!

You must have a different property manager than we do. Although our property manager provides advice, the property manager follows the board's instructions.

(Please, no names. It's against posting rules.)

DonaldN (Connecticut)
Posts: 183

Posted:

Never know Bruce, we might be neighbors ?

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Quote:

Posted By DonaldN on 04/13/2014 2:28 PM
Never know Bruce, we might be neighbors ?

I don't think so. We don't have 3-year terms and no one has been appointed to the board here.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By BruceF1 on 04/13/2014 1:31 PM

Donald

I agree with Bruce. It seems you are putting to much emphasis on the Property Manager. The PM works for the BOD and while a good PM will not do anything illegal, when push comes to shove they should do as the BOD directs otherwise move on down the road.

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