board appointment

We had a special member meeting to elect 5 new members to our BOD. 3 had resigned after two others were asked to resign but did not. 6 people ran for election and 5 were elected. The two bod members who would not resign before did so at the meeting. The association lawyer ran the meeting and said the new five board members terms would be to fill the remaining terms of the former board members that resigned with the larger number of votes determining the member to get the longest term and so on down the list.

A few weeks later the member with the most votes and newly elected president resigned. A couple of weeks after that a board meeting was held to appoint a new person to the board vacancy. The person that the BOD appointed was the only one not elected at the special election meeting. Our by laws state that in the event of death ,resignation or removal of a director, that directors successor shall be selected by the remaining members of the Board and shall serve for the unexpired term of the predecessor. The community manager and the acting president changed the order of the terms to give the newly appointed board member the shortest term which expires in couple of months(October 2014- the next election) rather than to give the newly appointed board member the term of the board member he was replacing. To me this is going to null the original election and reassign terms that were already decided by the election.

Is this the proper way to go about this? Would not the resigned person's term still be available at the next election if they did not appoint someone as well as the position for the expired term in which now has been changed to another person ?

Bylaws usually state that an appointed Director completes the unexpired term of the Director they are replacing. However, IMO, based on the unusual circumstances you presented, the Board might consider a resolution or a motion to change the term for each of the Directors involved.

You cannot change the bylaws by a mere resolution, which normally requires only a majority vote. That would be circumventing the bylaws. The bylaws can be changed only in accordance with the provisions for doing so.

How would you like it if Congress passed laws that violated the Constitution? Circumventing the bylaws by resolution is doing the same thing, only on a lower organizational level.

This depends on the bylaws. In my association the board may amend the bylaws as it chooses. The members do not vote on such amendments but my hold an election to override the amendment. So far, that scenario has never played itself out.

The Bylaws for Natalie, as she posted, state that the Board may appoint someone to serve the unexpired term of the predecessor. However, in reality, this doesn't matter unless the Articles of Incorporation defer to the Bylaws. This is because VA § 13.1-862 defers control to the Articles of Incorporation and not the Bylaws. However, it is typical for the Articles to specify that vacancies on the Board are filled by the Directors.

Natalie,

Honestly, since what was done could legally be done (as shown in my earlier posting), I wouldn't push the issue regardless of how it was done. This is because, the initial goal was to remove the previous Board. That goal was achieved. Give the new Board a bit of time to see what they do to correct the issues you saw with the previous Board.

To clarify my comment on changing the term of each Director this is based on the fact that the Board chose not to follow the Bylaws during the election. Instead they followed an attorney's advise to set the term for each Director based on the number of votes received. Based on their bylaws what should have been done is to have an individual vote of each vacancy. However, what often is done is a reasonable alternative. That logic was applied to determine the term of each Director in this circumstance.

To strictly follow the bylaws, since the term for each Director was not properly determined, there would need be be another members meeting to separately elect each Director to fill the unexpired term of the Director they are replacing. In reality HOA Board members try to agree on the term for each of them as a reasonable alternative. This is considered as making a sound business decision, which IMO is what the attorney' advise was based upon.