Board Vacancy

A newly elected Board Member (3 year term) had resigned after one month. In the past we have had vacancies and the board member appointed by the board filled the vacancy for the remainder of the term. Our Board attorney is interpreting our bylaw below differently. He is stating the appointed board member serves until the next Annual Meeting? All of the Board Members are interpreting the bylaw that the vacancy will be filled for the remainder of the 3 year term. Please advise.

3.5 Vacancies –Except as set forth in Section 3.4 above with respect to members of the Executive Board appointed by Declarant, vacancies in the Executive Board caused by any reason other than the removal of a member by a vote of the Unit Owners shall be filled by a vote of a majority of the remaining members at a special meeting of the Executive Board held for such purpose promptly after the occurrence of any such vacancy, even though the members present a such meeting may constitute less than a quorum. Each person so elected shall be a member of the Executive Board for the remainder of the term of the member being replaced and until a successor shall be elected at the next annual meeting of the Association at which such seat is to be filled upon expiration of the term of his predecessor. In the case of multiple vacancies, the member of the Executive Board receiving the greatest number of votes shall be elected for the longest term.

Maureen, I too agree with the Board's interpretation. Some HOA attorneys are incompetent. Recently my HOA's attorney pronounced that a director could be removed by a vote of the Board, citing the state statute that covers removal of officers. The attorney did not know there was a difference between an officer and a director. The Board set him straight. He billed us several hours.

Thank you. I'm surprised at our Attorney since he specializes in HOA law!

I stand corrected. The Board appoints a replacement and that person serves until a successor is elected AT the expiration of the term they were appointed to.

I think the bylaw contradicts itself. It says the appointed member would serve the remainder of the term but also says the member would serve until the next annual meeting. Unless the term happens to end at the next annual meeting, its contradictory.

Perhaps the attorney based his opinion on the fact that it is contradictory and recommends acting in a manner that most benefits the membership's right to elect their board members.

It may also be that the attorney is relying on a precedent or state law that prevails when the governing documents are unclear.

This is also my reading of it.

The tricky wording is at the next annual meeting upon expiration of the term. This does not mean the next annual meeting regardless. The term may not expire for say two years so the election would not be at the next annual meeting.

Normal people write something that can be understood with the first reading. Attorneys consistently write something that take 2-3 read throughs to MAYBE understand what they are trying to convey. That become a problem.

Your attorney is wrong but not for the reason you think.

The board has an interpretation. The question to the attorney should be "is our interpretation legally supported by the text?"

Can he twist the words in favour of your interpretation or not?

We're not attorneys here, so the best we can do is to affirm your interpretation or tell you that you're off your rocker. From my armchair, I'd say your interpretation is appropriate.

No and yes.

Unfortunately, that doesn't always happen.
A lot depends on how the question is asked and what questions the attorney asks the client.

Having read that section of the Bylaws and disagree with the attorney's interpretation (which I'll show later). Keep in mind that legal cases are based on differing opinions.

Now for my interpretation:

3.5 Vacancies –Except as set forth in Section 3.4 above with respect to members of the Executive Board appointed by Declarant,

Not applicable, as the Declarant is not in the picture.

vacancies in the Executive Board caused by any reason other than the removal of a member by a vote of the Unit Owners

This section applies to any vacancy that is not due to a recall and is not an appointee by the Declarant.

shall be filled by a vote of a majority of the remaining members at a special meeting of the Executive Board held for such purpose promptly after the occurrence of any such vacancy, even though the members present a such meeting may constitute less than a quorum.

Standard language. The remaining board members (regardless if the remaining members can make a quorum) appoints someone to fill the vacancy.

Each person so elected shall be a member of the Executive Board for the remainder of the term of the member being replaced

Said appointee SHALL serve out the remainder of the term of the vacancy.

and until a successor shall be elected at the next annual meeting of the Association at which such seat is to be filled upon expiration of the term of his predecessor.

The membership votes for a replacement for the appointee at the annual meeting when that seat would have normally been up for election (i.e. at the end of the term).

In the case of multiple vacancies, the member of the Executive Board receiving the greatest number of votes shall be elected for the longest term.

Addresses if there are multiple vacancies with staggered terms and who gets what seat.

Thank you all for all of your input. We now have another vacancy. One of our new board members who was elected (I say elected but no one else stepped up), is resigning due to moving. He served 6 months of a three year term.

The last year when we had a vacancy I asked your help on interpreting our bylaws. The board voted to go with our attorney's interpretation (I was outvoted) and our appointed board member was on the ballot for "re election".

Anyway, I think since the board voted to fill a vacancy for the remaining term and to the next election we set "past practice" and must again go with that interpretation.

It does make it difficult during elections because we had 2 (3 year terms) and had to make the 1 a (2 year term) with having three vacancies. I think it should have been the appointed board member was serving the remainder (which was 2 years) and we had an election for 2 3 year terms. The other two board members had one year left on their terms.

Regardless, I think we set the past practice so the person the Board appoints will be up for relection for a 2 year term (which makes no sense) because there are 2 board members who terms are up also in September and those are 3 year terms.

It should be that the appointed board member serves 2 years, 2 Elected board members serve 3 years and the one board member who was elected to the 2 term position last year (no one else stepped up) is a one year term.

The bottom line is that the Board set a past practice.

Thoughts?