Board to appoint to completely open director position?

Hi All,

Been out of town for awhile.

I didn't make my own neighborhood's recent Annual Meeting ... the outgoing president told me afterward only one person volunteered for the two open director positions, but that was no biggie since the board could appoint another director since no one volunteered. This is not the voluntary HOA I have written so often about - this neighborhood is approximately 325 single family homes with tight CC&Rs and published Bylaws.

The draft minutes read as follows:

"Nominations opened from the floor and nominees of John Doe. Nominations were closed without objection. Motion unanimously approved to waive the balloting requirement and acclimate John Doe and a Vacant position which may be appointed by the Board."

The association manager provided the following when I told him I could not find the ability to do this in the in bylaws:

"Yes, the process according to non profit law and robert rules is when a vacancy exists on the Board, the remaining board members MAY appoint a director for the unexpired term of that office. The appointment is by a majority vote of the Board. It must appear on the agenda."

Thoughts?

In an FS 720 HOA there's very little in the statute regarding the election of directors. 720.306 does say, "Except as otherwise provided in the governing documents, boards of directors must be elected by a plurality of the votes cast by eligible voters." So unless your governing documents, like the Bylaws, specifically provide for election to the board by "acclimation" (and I doubt they do) they the owners present should have voted anyway.

Regarding the board's ability to fill vacancies, they can fill it later if they desire. That exact situation happened here 2 years ago when we had 3 openings on a 7-person board and only one candidate stood for election. The remaining seats were filled in subsequent months.

720.306(9)(c):
... Unless otherwise provided in the bylaws, any vacancy occurring on the board before the expiration of a term may be filled by an affirmative vote of the majority of the remaining directors, even if the remaining directors constitute less than a quorum, or by the sole remaining director. ...
The board is also allowed to fill the vacancy by calling for a special meeting of the members.

It was in 617.0806 that I found the statement " ... Each director shall hold office for the term to which he or she is elected or appointed and until his or her successor has been elected or appointed and qualified or until his or her earlier resignation, removal from office, or death."

Granted, that section deals with staggered terms for directors, but I've seen nothing saying that it does not apply.

Director positions up for fill due to expiration of the terms - both were runouts of three years terms.

We still have five of the six positions filled ... there was a quorum as there was one candidate and he was elected ... see the strange language from my first post ... “...acclimate John Doe and a vacant position which can be appointed by the Board.”

George
Can you provide detail on what the meeting announcement said about how the election would work?

George

My first blush is that what they did is proper. If I read what you said correctly:

1. There were two open spots on the BOD. One person volunteered to run. As only one for two spots, I say that person won via acclamation. No need for an election.

2. There is still one open spot on the BOD and the BOD has the authority to appoint someone to that spot. The person will have to be voted on by a majority of the BOD.

What am I missing and/or what you are not liking?

It all depends on the Bylaws. The size of the board was fixed at 7 for the year. 4 directors had a year left on their terms and there were 3 openings to be filled. Only one volunteer threw his hat into the ring. So after the Annual Meeting there were 5 directors on a 7-seat board with 2 unfilled seats.

Our Bylaws say,

"Should a vacancy occur at any time ... a majority of the remaining members of the Board of Directors shall have the power to select a person to fill such vacancy until the next annual meeting."

Where elections, directors and boards are concerned the statute defers in almost every respect to the Bylaws of the association. We consider that the 7-member board began the year with 2 immediately vacant seats, i.e. vacancies. We have directors resign mid-term every year here. At least 2 in every year that I've been here. As a result we're always looking to fill empty seats. We've ended up with some pretty bad boards that way but rightly or wrongly our position has been, "We have a board size of seven. There are currently 5 board members and 2 seats are vacant. The board has the power to fill vacancies."

As for directors continuing to serve until their replacements are elected, directors here cannot wait for their terms to end and would just resign prior to the Annual Meeting if necessary to make it legal. The position here is that when a director's term is up that creates an opening on the board to be filled at the election. If the director whose term is up wanted to serve another term anew, then they would announce their intention to run again and appear on the ballot. That they don't do so is taken as an implicit admission that they don't want to be on the board anymore. I don't think it has happened but I'm almost sure someone who "served their time" and wanted off the board would be more than willing to submit a resignation at the Annual Meeting (after the election results are announced) so that there would be no question of whether or not they were continuing to serve. No one can be forced to stay on as a Director if they don't wish it.

I suppose it's quite different elsewhere that has different factions vying for control of the board and where some are willing to engage in shady practices and/or dirty tricks in order to maintain their grip on power. That is definitely not the case in my HOA.

It all depends on the wording of the Bylaws because of the great deference shown by the statute. If the bylaws said everyone shall draw straws and the short straw gets to decide who fills the vacancy, that would technically be legal in an FS 720 HOA.

Some language from our Bylaws:

"Article V - Nomination and Election of Directors
...
Section 5.2 - Election. Election to the Board of Directors shall be by voice vote of a show of hands, unless objected to by thirty percent (30%) of the Members present at that meeting, in which case the election shall be by written ballot. The persons receiving the largest number of votes shall be elected. Cumulative voting is prohibited."
+++++++
There is a bit of catch-all in the Powers Dection 7.1.c of the Powers and Duties Article ... I'll show beginning of each one to paint a complete picture ...

"Article VII - Powers and Duties of the Board of Directors
...
Section 7.1 - Powers
a. Adopt and publish rules ...
b. Suspect the voting rights of a Member ...
c. Exercise for the Association all powers, duties, and authority vested in or delegated to this Association by these Bylaws, the Articles of Incorporation or the Declaration, and which are not reserved to the Members by other provisions of these Bylaws, the Articles of Incorporation, or the Declaration
d. Declare the office of a member of the Board of Directors to be vacant in the event...
e. Employ a manager, an independent contractor ...

+++++++
There is language in the section on Officers allowing vacancies to be filled ... but, it is specific to Officers ...

"Article VIII - Officers and Their Duties
...
Section 8.6 - Vacancies. A vacancy in any office my be filled by appointment by the Board of Directors. The officer appointed to such vacancy shall serve for the remainder of the term of the officer he replaces."

There is nothing related in the CCRs re this topic. The Articles note no more than 9 and no less than 3 directors. No mention of the Board appointing members.

The Board has power to modify the Bylaws at any time - majority vote - noted in both Bylaws and Articles of Incorporation.

So, basic question: Due to expiration of director terms, if Membership only elects five Directors, and leaves an opening, if not in Bylaws, CCRs, or Articles, where does the Board get the authority to appoint a someone to that position?

NpS,

Just the usual about replacing director after missing three meeting ...

NpS,

I’ve spent a few hours reading and re reading Florida Statue and our governing docs ... I can’t find anything that allows the Board to fill unfilled seats from the members meeting. Sure they can fill seats of someone who quits, leaves, etc, but ...

Without a membership vote, the director whose term was going to expire needs to keep serving until a new membership vote is taken to replace him. Of course, if he refuses to serve (resigns) then the board can vote to replace him, but they are not required to do so.

Jeez - sorry.

I’m following what you’re saying ... darn autocorrect.

But, he resigned collateral to the meeting ... there was, then, an unfilled Board position that the membership did not vote to fill.

I’m sorry ...I’m still not getting it ..

Hmmm.

Two openings at the time of the election, from two directors who resigned, effective the date of the meeting, so their seats were open.

One person elected by acclamation, and, reference the language in my original post from the draft minutes, the members gave the board ...”...Motion unanimously approved to waive the balloting requirement and acclimate John Doe and a Vacant position which may be appointed by the Board."

So, two issues ...

1. Can membership assign responsibility to appoint a director?
2. If 1. is no, then can Board appoint a director to an opening that was left open by the membership?

Analysis. You seem to be drilling down on a procedure that seems odd, but it's only odd because the community, with full knowledge that the Board needed 2 new members, failed to come up with the 2 that were needed. The Board had every right to carry on as necessary to fill all seats.

It is not a question of membership assigning the ability. It is already in the Covenants that the BOD has the right to fill BOD Vacancies.