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number of Board directors, who determines it?

Started by YijiaW • 18 replies • 1637 views

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YijiaW (California)
Posts: 23
Posted:
If the HOA bylaws clearly states that the Board shall consist of 3 directors, but only 2 directors are on the board right now with one vacancy. The board meets the quorum requirement to conduct business (2 out of 3 board members). The President of the Board says that 2 is enough and that we don't need the 3rd member. Can the HOA legally have 2 board members or we must have 3 board members because the bylaws dictates it? Also if the Board refuses to fill the last vacancy on the Board, what other choices do the homeowners have? Our HOA is in the Los Angeles Area.

The Davis Sterling Act is ambiguous about this.

Thank you in advance.
RwT (Florida)
Posts: 154
Posted:
Yes you technically have a quorum but it is easy for the BOD to have a tie or deadlock with regards to voting.

D-S may say something about how, when, etc., to remedy vacancies.
* Non-Lawyer spokesperson.
YijiaW (California)
Posts: 23
Posted:
So technically we can just ignore the bylaws and have 2 because it meets the quorum? Then what is the point of having bylaws or any governing documents if that is the case?

Thanks
RwT (Florida)
Posts: 154
Posted:
That logic is flawed beyond explanation.

People speed on the highway so why have limits?

Vacancies occur, period.

Your docs. or the law (D-S) mandate how to fill them.
* Non-Lawyer spokesperson.
RichardP13 (California)
Posts: 1,767
Posted:
Failure to Appoint. If the board fails or refuses to fill an empty position, the membership may elect a director at any time to fill the position. (Corp. Code §7224(b).) The process is initiated by filing a petition with the board for a special membership meeting to fill the vacant seat.

YijiaW (California)
Posts: 23
Posted:
So what you are saying is the president of the board's train of though is flawed because just because we meet the quorum we still have to abide by the bylaws and CC&R because it's the law of the HOA?

RichardP13 (California)
Posts: 1,767
Posted:
No, what I am saying is, if the board chooses not to appoint a new director, then a petition signed by 5% of the members can instruct the board to call for a special meeting of the members so the sole purpose to elect a new director. If elected by the members, it would have to be by secret ballot.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By YijiaW on 08/13/2014 8:52 AM
So technically we can just ignore the bylaws and have 2 because it meets the quorum? Then what is the point of having bylaws or any governing documents if that is the case?

Well, did you volunteer to serve in the vacant position?

If you did volunteer and they don't want to appoint you to the position, I certainly see an issue.

If you did not volunteer, then (to be honest) I don't think it's right to be complaining because the other Directors are not filling the seat.
YijiaW (California)
Posts: 23
Posted:
Quote:
Posted By TimB4 on 08/13/2014 11:22 AM
Posted By YijiaW on 08/13/2014 8:52 AM
So technically we can just ignore the bylaws and have 2 because it meets the quorum? Then what is the point of having bylaws or any governing documents if that is the case?


Well, did you volunteer to serve in the vacant position?

If you did volunteer and they don't want to appoint you to the position, I certainly see an issue.

If you did not volunteer, then (to be honest) I don't think it's right to be complaining because the other Directors are not filling the seat.

I am on the board. I'm trying to convince the president of the board to fill the last vacancy. The HOA is very small, only 7 units. One person has stepped up and volunteered but the president doesn't get along with this person. The president said that if this person tries to get on the board, she will block with her vote. I'm all for having 3 people so I will vote for this person. The HOA has a lot of issues, mainly financial. I think by having a complete board will help fix these problems. The volunteer is qualified for the position but the president of the board does not want her for personal reasons which I think has no business in running an association.
NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By YijiaW on 08/13/2014
I am on the board. I'm trying to convince the president of the board to fill the last vacancy. The HOA is very small, only 7 units. One person has stepped up and volunteered but the president doesn't get along with this person. The president said that if this person tries to get on the board, she will block with her vote. I'm all for having 3 people so I will vote for this person. The HOA has a lot of issues, mainly financial. I think by having a complete board will help fix these problems. The volunteer is qualified for the position but the president of the board does not want her for personal reasons which I think has no business in running an association.

It appears that your Board is already deadlocked - which demonstrates the need to fill the third slot. The Pres does not have the authority to refuse to fill the 3rd slot. You should follow the recommendations above to follow your CC&Rs and set up a special meeting.
Sikubali jukumu. Read all posts at your own risk.
RichardP13 (California)
Posts: 1,767
Posted:
If the President chooses not to fill the position, under Corporation Code, the person who wants to be on the Board complete a petition with her name, since they represent 5% of the community and hands the document to the Secretary and a special meeting would need to be calendared specifically to elect a director. This would need to be fill in on the petition. Voting has to be done by secret ballot. The Board has 20 days upon receipt to set a meeting date.

Not a difficult process.
YijiaW (California)
Posts: 23
Posted:
Quote:
Posted By RichardP13 on 08/13/2014 1:19 PM
If the President chooses not to fill the position, under Corporation Code, the person who wants to be on the Board complete a petition with her name, since they represent 5% of the community and hands the document to the Secretary and a special meeting would need to be calendared specifically to elect a director. This would need to be fill in on the petition. Voting has to be done by secret ballot. The Board has 20 days upon receipt to set a meeting date.

Not a difficult process.

Should the petition states when the meeting needs to be taken place? Or that process will be determined by the Board once it receives the petition from the person who wants to be on the board?

Thank you
KerryL1 (California)
Posts: 14,550
Posted:
Richard wrote: "The Board has 20 days upon receipt to set a meeting date." Without double-checking, Yijia, Richard probably is correct. If the president won't agree with you to appoint Ms. X to the Board, H/Os will elect her--or someone.

Not only does CA corporations state that, your own bylaws might. Ours do.
RichardP13 (California)
Posts: 1,767
Posted:
Quote:
Posted By YijiaW on 08/13/2014 1:47 PM
Posted By RichardP13 on 08/13/2014 1:19 PM
If the President chooses not to fill the position, under Corporation Code, the person who wants to be on the Board complete a petition with her name, since they represent 5% of the community and hands the document to the Secretary and a special meeting would need to be calendared specifically to elect a director. This would need to be fill in on the petition. Voting has to be done by secret ballot. The Board has 20 days upon receipt to set a meeting date.

Not a difficult process.


Should the petition states when the meeting needs to be taken place? Or that process will be determined by the Board once it receives the petition from the person who wants to be on the board?

Thank you

The link will show you a sample petition. Follow to the letter.

http://www.davis-stirling.com/tabid/1866/Default.aspx#axzz3AHz7ZYfH
YijiaW (California)
Posts: 23
Posted:
Quote:
Posted By KerryL1 on 08/13/2014 2:11 PM
Richard wrote: "The Board has 20 days upon receipt to set a meeting date." Without double-checking, Yijia, Richard probably is correct. If the president won't agree with you to appoint Ms. X to the Board, H/Os will elect her--or someone.

Not only does CA corporations state that, your own bylaws might. Ours do.

I have already talked to the homeowners. When I was trying to find a volunteer for the last board seat, all the homeowners suggested this one particular homeowner and I know they want to see her on the board. It is just that the president doesn't want her in. The president is not very familiar with the rules of HOA. She didn't even know that our own bylaws stated a 3 member board.
YijiaW (California)
Posts: 23
Posted:
I read the Davis Sterling Act last night regarding petition by members. I just want to make sure I'm understanding this correctly. Once the signed petition has been submitted to the Board. The Board has 20 days upon receipt of the petition to set the date and send out notices of the meeting. But the actual meeting can be between 35 days to 90 days from receipt of request? I know the president doesn't like this volunteer so I think she will use her power and stretch it to 90 days to hold this special meeting. Our HOA is in dire need to resolve our finances, it's on the brink of being insolvent. I'm trying to fix these problems but the president and I don't see eye to eye on certain issues and that's why we need one more board member to break the ties. We have the opportunity to cut costs for some of our expenses but to implement these changes we need the 3rd board member to do so. Is there a better way to get this volunteer on the board? Any suggestions will be greatly appreciated.

Thanks
RichardP13 (California)
Posts: 1,767
Posted:
Sometimes,these things take time. Maybe to allow cooler heads to prevail or allow someone to get all their ducks in an order.

A second option would be to include the recall of the entire Board and then at the same meeting, elect three directors. Most likely, because of the size of the HOA, you have cumulative voting which essentially requires you recall all directors, not just one. Maybe the threat of removing the President might have the benefit of moving thing more quickly.

Remember, you need the support of the entire community. Call a town hall meeting and discuss your plan, out in the open.

Good luck.
YijiaW (California)
Posts: 23
Posted:
Quote:
Posted By RichardP13 on 08/14/2014 12:33 PM
Sometimes,these things take time. Maybe to allow cooler heads to prevail or allow someone to get all their ducks in an order.

A second option would be to include the recall of the entire Board and then at the same meeting, elect three directors. Most likely, because of the size of the HOA, you have cumulative voting which essentially requires you recall all directors, not just one. Maybe the threat of removing the President might have the benefit of moving thing more quickly.

Remember, you need the support of the entire community. Call a town hall meeting and discuss your plan, out in the open.

Good luck.

Thank you for the suggestion. Can I as a board member call or attend this town hall meeting? If so perhaps we can resolve some issues. Also can it be an informal meeting? Any advance notices?

Thanks
RichardP13 (California)
Posts: 1,767
Posted:
A town hall meeting would be the best way to handle this. No notice is legally required and no action is to be taken. Just a conversion between neighbors.

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