Death of a Board Candidate

Hello, all. We recently had an election for new Board members. Per our requirements, the ballots were sent out 45 days prior to the election. On the day that the ballots were counted we received word that one of the candidates (George) had died just that morning. George had received the most votes upon counting the ballots. Since there were three people running for two seats, the Board decided to appoint the third place vote getter to George's now-vacant seat. Some of our members who complain about everything think that the Board should have invalidated the vote and started over with a new slate and a new vote (very costly sending out ballots to over 800 members). Our Bylaws do give the Board the authority to appoint someone to fill a vacant Board position.

Has anyone ever dealt with an issue like this? To me it seems very clear -- one of the people elected to the Board could not serve, so his replacement was appointed by the Board. Does anyone see anything wrong with this scenario?

I do not have HOA case law to back this up. I will assume a proper election was run, with all i's dotted and t's crossed and at some expense. The person, duly listed on a legal ballot and who received the most votes, could not take office. In my opinion, the Board is within its rights to appoint a replacement.

From beyond HOAs: Suppose the candidate died two weeks before election day. Was the government obliged to run a new election? If Congressional and municipal elections are a guide, no. Why? I think the reason is that it is an extraordinary burden to print new ballots and put everyone on proper legal notice. Legal notice is not a trivial matter. Running elections on a day not normally designated for elections typically results in lower voter turnout, for one. Note that in some Congressional and municipal races in the past, even when the candidate died several weeks before the election, citizens would often elect the dead person. You'll see some commentary in these cases like, 'Even the dead guy is better for this office than his opponent.' I think it's fair to say that voters know they take a risk that the person for whom they vote may die in the window between when legal notice is required and election day. They take the risk that someone will be appointed subsequently, per the governing documents.

My former HOA had a woman win the most votes and then resign two weeks later. She had planned this. She had cancer and did die about 12 months later. Within her legal rights, she figured that it would be better for the new board to be able to appoint someone than to have the next highest vote-getter take office. The board did appoint someone, and it was not the next highest vote-getter. Some would say this was unethical. I do not.

I have seen other HOA boards have a resignation and refuse to appoint someone, leaving a board seat vacant, even though another was willing to fill the seat. This is a little questionable. At least one HOA attorney I know said the Board could open itself up to legal challenges if it passed motions without trying to have a full slate of directors. Caveat: Some governing documents are more clear than others about having a full slate of directors.

I agree.

I'm in agreement with the others who say what you did was fine, Ellen. One of our former directors used to say, if you gave away money, $50 to every homeowner, there would be some complaining that it wasn't $100.