Reappointing a board member who resigned

DaveC11 (North Carolina)
Posts: 2

Posted:

We have a board member who resigned her position. She had less than a month left on her term. Knowing that she would not get re-elected at the annual meeting (less than a month away) The reason she resigned was to get re appointed to take the remaining term of another board member who moved earlier that month. So basically she served her two year term-quit-then was re appointed to serve another year ( time left on the board member who moved. Is this legal or even ethical???

LarryB13 (Arizona)
Posts: 4,099

Posted:

Dave,

Normally when a person is appointed to fill a vacant seat, he holds it until the next annual election and not until the expiration of the term his predecessor was originally elected to. (If the person is elected then he serves only until the expiration of the original term; he does not begin a whole new term.) This might be addressed in your state's corporate code or in the bylaws of your association.

In my opinion, this takes some stones to do this as not only was the office holder aware that her presence on the board was not wanted by a majority of the voting members but a majority of the board was complicit in this act, which is essentially spitting in the faces of the membership. I hope you vote those bastards out of office.

JonD1
Posts: 2,350

Posted:

So the remaining board members decided to appoint her?

And she now sits on the board?

Depending on your documents the board could very well have the authority to appoint a replacement. Making it legal.

Ethical in my view might be different. Seems the board might be trying to circumvent the election process for those who might face difficult election.

If this was in fact the case I would work to replace the board.

DaveC11 (North Carolina)
Posts: 2

Posted:

Yes- she sits on the board. She was reappointed by two of the original 5. One moved, one resigned two months sgo and she resigned in February knowing an election for new members was coming in a month. We have 5 people who wanted to be elected. The community voted on three new members not 4 because she re-invented herself. It was so unethical I am trying to find out if it's legal. We are having our first new board meeting this week and the three new members( controlling interest) want her out

TimB4 (Tennessee)
Posts: 21,059

Posted:

Is it legal? Ask an attorney.

Could it be done? Based on my reading of North Carolina Planned Community Act and North Carolina Nonprofit Corporation Act, applicable if your Association is incorporated as a nonprofit (most are, but check to be sure), Yes.

Is it ethical? No (at least that is my opinion)

"the three new members( controlling interest) want her out"

Since she was appointed, in accordance with § 55A-8-09 (if applicable), you may be able to do that. However, is this the fight you want? It will divide the community and may even result in legal action. Instead, since the three of you have control of the Board:

Don't assign the individual an Officer position.
Vote as a pack and it won't matter if that person is on the Board or not.

They may get the message and resign again.

NpS (Pennsylvania)
Posts: 4,216

Posted:

1. Have you asked your HOA lawyer whether her seat should have been up for election?

2. If she was selected rather than elected, I'd say that she serves at the pleasure of the board. Why can't the new majority replace her?

Sikubali jukumu. Read all posts at your own risk.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By NpS on 04/11/2016 2:09 AM
1. Have you asked your HOA lawyer whether her seat should have been up for election?

Since the election was already held, I don't see the value in getting a legal opinion on this.
Move on.

Quote:

Posted By NpS on 04/11/2016 2:09 AM
2. If she was selected rather than elected, I'd say that she serves at the pleasure of the board. Why can't the new majority replace her?

Per my research, I agree with you and believe that this could be done.
However, I'm not sure it's worth dividing the community over or the potential legal costs.

Instead, since the newly elected control the vote, utilize the power of the vote and don't place the individual into a position of authority. There is no need to worry about the individual votes because there is enough to out vote them.

Therefore, it's probably better for the Association to have the new and the old board members play nice and utilize majority rule to obtain the changes they see as required.

TimB4 (Tennessee)
Posts: 21,059

Posted:

I'll also add that there are likely more important things to worry about then how this one individual was able to stay on the Board. A good director needs to see beyond the personality conflicts.

JonD1
Posts: 2,350

Posted:

If the new board does in fact have the power to remove her this would be my first order of business.

If questioned you can explain the unethical behavior demonstrated by this person and her therefore being unfit for board service.

As someone said, "elections have consequences" her removal would be a consequence. Myself I would not wish to serve, or be in the company of such a person.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Dave

One can be removed from the BOD by those that elected/appointed one to the BOD. As she was appointed by the BOD, she can be removed by the BOD.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By TimB4 on 04/11/2016 2:31 AM

Posted By NpS on 04/11/2016 2:09 AM
2. If she was selected rather than elected, I'd say that she serves at the pleasure of the board. Why can't the new majority replace her?

Per my research, I agree with you and believe that this could be done.
However, I'm not sure it's worth dividing the community over or the potential legal costs.

Instead, since the newly elected control the vote, utilize the power of the vote and don't place the individual into a position of authority. There is no need to worry about the individual votes because there is enough to out vote them.

Therefore, it's probably better for the Association to have the new and the old board members play nice and utilize majority rule to obtain the changes they see as required.

Disagree.

The board now consists of 3 new members and 2 who intentionally participated in this election shell game. It's already a divisive board. Making nice may not be in the cards.

Although 3 new can out vote 2 old, it would mean that the 3 may have to vote as a block which doesn't leave room for a difference of opinion among the 3 - which could negatively impact the dynamic of the dialog significantly. Why should they have to play that game?

Re your concern about cost of lawyer's opinion:
1. Shouldn't be too expensive;
2. Should have been done before the election;
3. Question to lawyer could be "How do we prevent this from happening again?" - which makes it a future concern and not just a past one.

Sikubali jukumu. Read all posts at your own risk.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By NpS on 04/11/2016 6:53 AM

3. Question to lawyer could be "How do we prevent this from happening again?" - which makes it a future concern and not just a past one.

No need to go to an attorney on this.

Amend the Bylaws to specify that any Director who has resigned or been removed may not be reappointed to fill any vacancy on the Board until after the annual membership meeting, that follows the resignation or removal, to elect Directors is held.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By TimB4 on 04/11/2016 9:54 AM

Posted By NpS on 04/11/2016 6:53 AM

3. Question to lawyer could be "How do we prevent this from happening again?" - which makes it a future concern and not just a past one.

No need to go to an attorney on this.

Amend the Bylaws to specify that any Director who has resigned or been removed may not be reappointed to fill any vacancy on the Board until after the annual membership meeting, that follows the resignation or removal, to elect Directors is held.

Would prefer language like "appointment is only good until next election."

Sikubali jukumu. Read all posts at your own risk.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By NpS on 04/11/2016 10:10 AM

Would prefer language like "appointment is only good until next election."

However, that may be in conflict with the Statute

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By TimB4 on 04/11/2016 12:10 PM

Posted By NpS on 04/11/2016 10:10 AM

Would prefer language like "appointment is only good until next election."

However, that may be in conflict with the Statute

Thought that most statutes defer to docs. So conflict wouldn't be an issue.

Sikubali jukumu. Read all posts at your own risk.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By NpS on 04/11/2016 10:10 AM

Would prefer language like "appointment is only good until next election."

Typically, as has been pointed out by others, appointments are to finish the term.

Your suggested language could be interpreted two different ways. The next election of the seat or the next election period.

My suggested language prevents anyone who resigned from being appointed to a vacancy until after the next annual meeting where an election takes place. This addresses if there are multiple general membership meetings. This also prevents what occurred from occurring (as the individual could not be appointed unless a vacancy still existed after the elections). It also minimizes different interpretations.

Granted, my language doesn't prevent the Board from simply not offering the seat to be filled at the election and filling it with the individual afterwards. However, if the membership is strong enough, that is less likely to happen.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By TimB4 on 04/11/2016 2:35 PM

Posted By NpS on 04/11/2016 10:10 AM

Would prefer language like "appointment is only good until next election."

Typically, as has been pointed out by others, appointments are to finish the term.

Your suggested language could be interpreted two different ways. The next election of the seat or the next election period.

My suggested language prevents anyone who resigned from being appointed to a vacancy until after the next annual meeting where an election takes place. This addresses if there are multiple general membership meetings. This also prevents what occurred from occurring (as the individual could not be appointed unless a vacancy still existed after the elections). It also minimizes different interpretations.

Granted, my language doesn't prevent the Board from simply not offering the seat to be filled at the election and filling it with the individual afterwards. However, if the membership is strong enough, that is less likely to happen.

Think your language leaves too many doors open.

What do you think of:

"Appointment is only good until the next time there is an election of one or more directors."

Sikubali jukumu. Read all posts at your own risk.

KerryL1 (California)
Posts: 14,550

Posted:

If the documents, probably the bylaws, say so, if directors appointed her, then directors can fire her. That's what I would vote for given that she herself thought she couldn't be reelected.

So, Dave: what do your bylaws say? BTW, are you on this board?

We have couple of very cautious directors now who always worry that the "community" would be upset or "divided" if the Board acted on this or that. In those cases, the Board did act and no uproar ensued. In the case under discussion, the "community" does not seem to want her!

Our bylaws say appointees filling vacancies serve until the next annual meeting, which, by definition, is to elect directors though other business might be conducted too.

TimB4 (Tennessee)
Posts: 21,059

Posted:

NP,

Realistically, without knowing what all of their documents specify and without researching applicable laws, it's difficult to come up with exact wording that would work with no loopholes.

I'm too busy working on changing my own documents.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By KerryL1 on 04/11/2016 3:47 PM
Our bylaws say appointees filling vacancies serve until the next annual meeting, which, by definition, is to elect directors though other business might be conducted too.

Works for me.

Sikubali jukumu. Read all posts at your own risk.