Filing Vacancies - Connecticut

Started by DonaldN • 15 replies • 1510 views

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DonaldN (Connecticut)
Posts: 183

Posted:

Our state condo statute says that the Board "may fill vacancies for the unexpired portion or, if earlier, the next scheduled election meeting " - our bylaws just say for the unexpired portion which would mean that it's re-filled for a full term .

My question : if the vacancy is filled until the next meeting , would that seat be re-filled for a full term or the remaining term ?

For Connecticut responders , I'd be interested in knowing how they administer this rule in practice or how their counsel has suggested it be interpreted ?

TimB4 (Tennessee)
Posts: 21,059

Posted:

I would expect the remainder of the unexpired term.

However, does the statute retain control or does it defer control to the governing documents?

Additionally, is the statute applicable (as some statutes only apply for Associations created between certain dates)?

DonaldN (Connecticut)
Posts: 183

Posted:

The statute is applicable to us and it takes precedence but it added wording, "until the next meeting" without addressing what happens after that - there's 2 choices , the winner of the election could begin a new full term or serve out the remainder.

The bylaws just say for the unexpired portion which makes it easy - no interpretation necessary - the next person would serve a full term .

But I agree with you Tim , it makes sense that it would be for the remainder of the term but the way it stands now it is open for interpretation - that's why I was wondering how others, with a similar provision for filling vacancies, are interpreting it.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Quote:

Posted By DonaldN on 05/06/2014 8:18 AM
The statute is applicable to us and it takes precedence but it added wording, "until the next meeting" without addressing what happens after that - there's 2 choices , the winner of the election could begin a new full term or serve out the remainder.

The bylaws just say for the unexpired portion which makes it easy - no interpretation necessary - the next person would serve a full term .

But I agree with you Tim , it makes sense that it would be for the remainder of the term but the way it stands now it is open for interpretation - that's why I was wondering how others, with a similar provision for filling vacancies, are interpreting it.

Donald,

Haven't you already asked this question before?

My answer is still the same.

We have exactly that same situation. We presently have two vacancies for terms that were supposed to end in November 2015.

At out next board meeting (May) we have 2 people who are interested in serving on the board. If the board appoints them, their terms will expire in accordance with the CIOA (CT state law)in November 2014 when our next annual election takes place. At that time, there will be 4 vacancies: 2 vacancies that will expire in 2016 (board members serve 2-year terms), and 2 vacancies that will expire in 2015 (the original expiration fate for the 2 vacancies that presently exist).

The 2 people with the highest votes will receive the 2-year terms (that expire in 2016) and the 2 people with the next highest votes will be elected FOR THE REMAINDER OF THE TERM FOR THE VACANCIES THAT PRESENTLY EXIST (in 2015). This allows us to comply with the law AND with our bylaws.

At our annual election each fall, we elect 2 people to the board in even-numbered years, and 3 people to the board in odd-numbered years. This year, to comply with our bylaw requirement that at least 1/3 of the board members' terms must expire each year, the election has to be held as stated or, sometime in the future we will not be in compliance with our bylaws.

It's really that simple. You asked how we interpret it - - THAT'S how we interpret it.

Just elect people FOR THE REMAINDER OF THE ORIGINAL TERM. NOT for a new, full term.

DonaldN (Connecticut)
Posts: 183

Posted:

Bruce ,

Ok I see what you're saying - in your example if those 2 vacancies that will expire in 2015 were instead given full 2 year terms then only 1 spot would expire in 2015 and the 1/3 rule would be violated.

But if you didn't have the 1/3 rule in your bylaws then I contend that you could interpret 47-245(b)(3) two ways - the way you're doing it or giving those 2 vacancies a full 2 year term instead of terms that end in 2015 - this wouldn't make sense because then you'd have 1 expiring in 2015 and 4 in 2016 - but 47-245(b)(3) doesn't say that and it should because associations to my knowledge aren't required to include the 1/3 rule in their bylaws.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Donald,

I'm not sure what you are trying to find out. I don't have the exact wording of your bylaws in front of me to completely understand what your dilemma is.

What I see at this point are two possibilities:

1. You believe that the candidates at the annual election should be elected to fill a new, complete, term, and you are looking for someone to agree with that;

or,

2. You are trying to convince someone that a candidate should be elected to fill only the remainder of the original term.

In the first instance, you will not be satisfied until someone agrees with you, (elected to a new full term) which I won't;

or

In the second instance, you are trying to convince someone a person should be elected to fill only the remainder of the existing term. I agree with that, but if you are trying to convince someone else, good luck. Some people may never be convinced, even if you beat them over the head.

Einstein once said that the definition of insanity is doing the same thing over and over and expecting a different result each time. The corollary to that is asking the same question over and over and expecting a different answer each time.

Elect people to fill the remainder of the existing term(s) and be done with it! That way, everything goes on just as before the vacancies ever existed. Isn't that what you want?

DonaldN (Connecticut)
Posts: 183

Posted:

Bruce,

First off thanks for your time on this - I don't think you're reading me right but that could be a consequence and possible shortcoming of written communication .

(1)Would you agree that 47-245(b)(3) has to be interpreted in such a way that the particular association's bylaws are not violated ?

(2)and would you also agree that 47-245(b)(3) by itself can be interpreted a couple of ways ?

those are very different questions - the second one is just academic but I'd like your view .

Our association should operate exactly like yours , 5 members, 2 year terms, vacancies filled for remainder, & 1/3 rule.

I'm trying to prepare a good argument in support of that and to counter an opposing argument that may feel full terms are the way 47-245(b)(3) can be interpreted.

I think I'm simply going to use my statement in (1) above .

thanks again !!

Don

DonaldN (Connecticut)
Posts: 183

Posted:

Bruce ,

There are situations where you may need to give a full term rather than the unexpired portion - we incorrectly had 3 year terms and violated the 1/3 rule for years .

In 2012 we had 3 year terms and then in 2013 changed to 2 year terms - this year we have 2 seats open, 1 of which is for 1 year since it's a remaining term situation , the other will be for 2 years - however next year there would be 4 seats open and 1 in 2016 - to get back in sync one possibility would be to give each of the seats this year 2 year terms - then we would be in a 3/2 odd/even rotation like you .

The other option would be to give 1 of the 4 seats next year a 1 year term and the other three 2 year terms - that would bring us back in sync also.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Quote:

Posted By DonaldN on 05/07/2014 7:41 AM

(1)Would you agree that 47-245(b)(3) has to be interpreted in such a way that the particular association's bylaws are not violated ?

(2)and would you also agree that 47-245(b)(3) by itself can be interpreted a couple of ways ?

My answer to both questions is emphatically, NO!

Section 47-245(b)(3) must be interpreted the way it is written. It doesn't matter what your bylaws say. State law ALWAYS supersedes (trumps, outranks or whatever word you choose to use) anything in any and all of your documents, including your Declaration and bylaws. It doesn't matter what your bylaws say about terms for directors that are APPOINTED to the board by the existing board members.

Here are the words from our association lawyer on the interpretation of 47-245(b)(3):

"The board may fill a vacancy in its membership only for the shorter of:

Until the next regularly scheduled election of directors; or

Until the end of the term of the vacant directorship [Subsection 47-245(b)(3)]."

So, who's interpretation is most likely the correct one? Yours, or the lawyer's? As you can see, there is only one way to interpret Section 47-245(b)(3).

You need to remember there is a hierarchy that must be followed:

1. Federal laws and regulations
2. State laws and regulations
3. County laws and regulations
4. City or town ordnances and zoning regulations
5. Declaration
6. Articles of Incorporation
7. Bylaws
8. Association Rules and Regulations
9. Board resolutions

As you can see, bylaws are pretty low on the list. If something in your bylaws contradicts any requirement stated in any of the higher laws or regulations in the list, the requirement of the higher law or regulation prevails. Always. End of discussion.

In fact, if at any meeting of the board or the homeowners, if any motion is made that contradicts any federal state, county or local law, or your declaration, articles of incorporation or bylaws, the president has an obligation to rule that motion out of order. It cannot be debated or voted on.

DonaldN (Connecticut)
Posts: 183

Posted:

Bruce ,

Again , you've given me a lot of your time and you have a strong knowledge base but you're not grasping my point .

In the case where the vacancy is filled "until the next scheduled election" that Subsection doesn't provide guidance on how long the next term will be - I ask you, does it say the next term will be for the unexpired prior term or a full term ? no , it's silent .

And by the way you didn't provide your lawyer's interpretation, all you did was provide what 47-245(b)(3) says almost verbatim.

again thanks for your time .

Don

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Don

I guess I might read it to simple. The next meeting might not mean the next meeting of the BOD. As most docs call for only one meeting (annual/election) the expression might well mean such (annual/election meeting), not the next BOD Meeting. Could make a legal argument on this one.

The appointed/filled vacancy will be until (expire) at the next BOD Election.

This could throw off staggered terms but that issue can be dealt with.

Often a BOD may decide not to fill the vacancy especially if for only a short period of time before the next election. Let the owners decide on who.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Quote:

Posted By DonaldN on 05/07/2014 2:26 PM
Bruce ,

Again , you've given me a lot of your time and you have a strong knowledge base but you're not grasping my point .

In the case where the vacancy is filled "until the next scheduled election" that Subsection doesn't provide guidance on how long the next term will be - I ask you, does it say the next term will be for the unexpired prior term or a full term ? no , it's silent .

And by the way you didn't provide your lawyer's interpretation, all you did was provide what 47-245(b)(3) says almost verbatim.

again thanks for your time .

Don

That is correct. The law is only concerned about the length of the term when vacancies are filled by a board appointment. The law doesn't apply to vacancies filled by election by homeowners at a regular, annual election. You can do whatever you like, provided it's in accordance with your bylaws. However, you should not fill vacancies for terms that would result in being in violation of your bylaws at the present, or some future date. That you should not do. As I told you several weeks ago, you need to test your proposed action to see if that happens. If it does result in a violation of your bylaws, you can't do it. If it doesn't result in a violation, you can. You need to look at how vacancies expire each year for several years in the future to see if at any point you will be in violation of your bylaws. I can't answer that (nor can anybody else) without knowledge of the exact wording of your bylaws.

I did quote you the exact words from our attorney. In fact, it was copy-and-paste. The words between the quotation marks were taken from a document prepared by our attorneys, a law firm that specializes in HOA and Condo law. That's all they do. I quoted a section from a document titled "(Name of Association) Document Overlay - An outline of the Impact of the 2009 Amendments to the Common Interest Ownership Act - Law Offices of (name of law firm)."

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Don,

It may interest you to know that back in 2008 there was a bill in the Connecticut Legislature, HB05773, that was supposed to establish an 8-member commission to investigate and resolve complaints of association boards and/or officers alleged to have committed violations of Chapter 825, Chapter 828, or of THEIR OWN ASSOCIATION BYLAWS. The commission was supposed to be empowered to order compliance and the Attorney General was supposed to have the power to levy penalties of $100 per day, up to a maximum of $1000, if the board and/or officer(s) failed to comply with the commission's orders. Simply put, an HOA board could be fined up to $1,000 for failure to comply with the association's own bylaws.

The bill never made it out of committee.

EllieD (Vermont)
Posts: 446

Posted:

Re the ACT requirement - I do not know whether it will help or confuse to compare the previous version with the current version, so as to point out the "new" words which were added.

(I do not have a copies of the Connecticut Acts that I can copy and paste from, so I am using copies of the UCIOA, which should be similar. Also the UCIOA contains “Comments and explanation” in addition to the actual provisions.)

The latest UCIOA reads: SECTION 3-103. EXECUTIVE BOARD MEMBERS AND OFFICERS.
(b) The executive board may not act to: (4) elect members of the executive board but may fill vacancies in its membership for the unexpired portion of any term or, if earlier, until the next regularly scheduled election of executive board members;

However, the prior UCIOA read:

(b) The executive board may not . . . , but the executive board may fill vacancies in its membership for the unexpired portion of any term. (end of sentence)

In comparing, note that the current revised version, has added the words: “or, if earlier, until the next regularly scheduled election of executive board members.”
------------------------------

If I am interpreting Donald’s postings correctly, it seems the Bylaws he is referring to, were written to conform to the previous earlier version of the Connecticut Act, and read similar - which apparently prompted Donald to ask: “(1) Would you agree that 47-245(b)(3) has to be interpreted in such a way that the particular association's bylaws are not violated?
------------------------------

Following UCIOA SECTION 3-106. BYLAWS. The latest 2008 UCIOA addresses possible conflict, by COMMENT on page 25:

“The definition of “bylaws” reflects the common functional meaning of that term . . . However, regardless of the name of the instrument used in the declaration, this Act mandates the minimum contents of the bylaws; see Section 3-106.

Further, any provision of the State’s statutes governing the content of the bylaws or, as appropriate, the operating agreement, to the extent inconsistent with the requirements of Section 3-106, would be overridden by this Act; see Section 1-108.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Quote:

Posted By EllieD on 05/08/2014 8:30 AM
Re the ACT requirement - I do not know whether it will help or confuse to compare the previous version with the current version, so as to point out the "new" words which were added.

(I do not have a copies of the Connecticut Acts that I can copy and paste from, so I am using copies of the UCIOA, which should be similar. Also the UCIOA contains “Comments and explanation” in addition to the actual provisions.)

The latest UCIOA reads: SECTION 3-103. EXECUTIVE BOARD MEMBERS AND OFFICERS.
(b) The executive board may not act to: (4) elect members of the executive board but may fill vacancies in its membership for the unexpired portion of any term or, if earlier, until the next regularly scheduled election of executive board members;

However, the prior UCIOA read:

(b) The executive board may not . . . , but the executive board may fill vacancies in its membership for the unexpired portion of any term. (end of sentence)

In comparing, note that the current revised version, has added the words: “or, if earlier, until the next regularly scheduled election of executive board members.”
------------------------------

If I am interpreting Donald’s postings correctly, it seems the Bylaws he is referring to, were written to conform to the previous earlier version of the Connecticut Act, and read similar - which apparently prompted Donald to ask: “(1) Would you agree that 47-245(b)(3) has to be interpreted in such a way that the particular association's bylaws are not violated?
------------------------------

Following UCIOA SECTION 3-106. BYLAWS. The latest 2008 UCIOA addresses possible conflict, by COMMENT on page 25:

“The definition of “bylaws” reflects the common functional meaning of that term . . . However, regardless of the name of the instrument used in the declaration, this Act mandates the minimum contents of the bylaws; see Section 3-106.

Further, any provision of the State’s statutes governing the content of the bylaws or, as appropriate, the operating agreement, to the extent inconsistent with the requirements of Section 3-106, would be overridden by this Act; see Section 1-108.

Ellie,

It is possible that Donald's bylaws were written in accordance with the earlier version of the CIOA (adopted by the CT legislature in 1984), and our association's bylaws were based on the old (1984)law also. When that changed with the latest version adopted by the CT legislature in 2009, that prompted our association attorney to write the "Document Overlay" that I referred to in an earlier post.

I think what Donald is looking for is what the law has to say about what happens at an annual election. That is, should a person be elected to fill a new, full term, or only the remainder of the term that was previously filled by appointment. I think he believes the law is supposed to provide such guidance when, in fact, the law doesn't care about what happens at an annual election. The law was changed to provide homeowners with the earliest opportunity to fill the vacancy themselves (the next annual election) rather than allow the board to fill a vacancy for a term that could last several years.

What I think Donald is having trouble with is that you can't (or shouldn't) elect someone for a term that would result in an eventual violation of the bylaws. Assuming that there has been no violation of the bylaws up until the vacancy occurred, the safest way to preserve the "status quo" and prevent a future violation of the bylaws, is to elect someone to fill the vacancy only for the remainder of the term. That way, life goes on as usual, as if the vacancy never occurred in the first place. Other options may be possible, but without knowing the exact wording of the bylaws, I can't suggest any other option.

DonaldN (Connecticut)
Posts: 183

Posted:

Thanks to all of you, Tim,Bruce,John,& Ellie for your time and insights and an apology to Bruce , he indeed understood where I was coming from - I was the one who wasn't fully appreciating or grasping his point.

As Bruce pointed out , the Connecticut law section 47-245(b)(3) is doing what it's suppose to do , spell out the service period for a vacancy filled by Board appointment - which will be until the next election meeting or the unexpired portion of the seat that was filled, whichever comes first - the association's bylaws are followed after that - in our case our bylaws will need to be amended to address what the subsequent term(s) of office will be given our 1/3 rule - and here again I agree with Bruce that the easiest way to accomplish this would be to provide the unexpired term of the member who quit.

Ellie our Association was formed in the late 80's and so our bylaws followed that 1984 law - our document simply says that vacancies are filled for the unexpired term of the prior incumbent.

And finally I think that proposed 8-member oversight commission that Bruce mentioned would have been a great idea - too bad it died in committee.

Thanks Again !!!!!

Don

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