Board appoints Director to unexpired term of resigning Director

Started by GeorgeS21 • 13 replies • 772 views

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GeorgeS21 (Florida)
Posts: 3,808

Posted:

Hi All,

Another subtlety that I need some help on.

Current HOA (659 single family properties) has 3-7 board members allowed per Bylaws. Bylaws has usual language regarding the Board being able to appoint replacement for someone who dies, leaves, resigns, is forced out by recall, etc.

Does this mean that a replacement for a Director who was elected in December (at an Annual Membership Meeting) for three years, then resigns after six months, can be made by the Board for the full "unexpired 2.5 years" - or, that since there is another Annual Membership Meeting that December, that the "replacement term" would expire as the Membership would be able to have another election?

AugustinD
Posts: 5,144

Posted:

720.306 Meetings of members; voting and election procedures; amendments.—
...
(9) ELECTIONS AND BOARD VACANCIES.—
... 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. In the alternative, a board may hold an election to fill the vacancy, in which case the election procedures must conform to the requirements of the governing documents. Unless otherwise provided in the bylaws, a board member appointed or elected under this section is appointed for the unexpired term of the seat being filled. Filling vacancies created by recall is governed by s. 720.303(10) and rules adopted by the division.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Yep ... had that, Augustin, but thanks.

So, even in the case of a 3 year term, you would consider the 2.5 years to meet this?

TimB4 (Tennessee)
Posts: 21,059

Posted:

They would be appointed for the remainder of the unexpired term (in what you provided, 2.5 years).

BillH10 (Texas)
Posts: 1,217

Posted:

I have seen Bylaws, including those which govern the Association in which we reside, which state the appointee shall serve until the next Annual Meeting of the Association, at which time an election shall be held to select an owner to serve for the remainder of the unexpired term.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By GeorgeS21 on 07/13/2020 8:32 PM

So, even in the case of a 3 year term, you would consider the 2.5 years to meet this?

It appears the former director did not leave because of a recall. (Per the statute, a recall changes things some.) So yes, in my opinion and under the statute, and assuming your bylaws say nothing more, the appointee gets appointed for the remaining 2.5 years.

MarkM19 (Texas)
Posts: 1,459

Posted:

GeorgeS21,
From the way you mention a 3 year term it makes me think that your HOA is in the process of separating from the Declarant. Is this the case? Usually the 3 year term is done the first Election so that everyone elected has different terms. Once that is done on a 5 member Board 2 Members are on the next ballot and 3 are on the following years ballot.

I agree that the appointee should serve the remainder of the persons spot he/she is filling.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Our Bylaws say until the end of the term so in the OP's case, 2.5 years. I have seen Bylaws that say until the next General Election.

The answer is it depends on your Bylaws.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Thanks, All!

MarkM, no, been separated for a few years - still one hanging issue. The CCRs still note that being a director does not require being an owner, and other than the President of the Board, the other officers don't need to be a member of the Board. This should have been amended after turnover.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By JohnC46 on 07/14/2020 9:20 AM
Our Bylaws say until the end of the term so in the OP's case, 2.5 years. I have seen Bylaws that say until the next General Election.

The answer is it depends on your Bylaws.

Our Bylaws say, "Should a vacancy occur at any time during a term for any reason in the membership of the Board of Directors, 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."

So any seat filled by the Board (selected, appointed, etc.) due to a vacancy is up for grabs at the next annual meeting.

KerryL1 (California)
Posts: 14,550

Posted:

Ours are like Geno's. I prefer it because otherwise an abusive board, which we have had, could appoint a real jerk- pal of theirs shortly after an election and that jerk could serve for almost two years. In George' case it'd be almost three years.

In ur & Geno's situation, it's a little easier to entice a short-term replacement, sheikh we've advertised as a good way to find out if you'd like to serve longer. The several months vs. almost two-year term gives someone the chance to check out the role without a major committement.

Our bylaws also state we must maintain staggered terms. so we have way to do that too.

But hiss Bylaws are clear.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By KerryL1 on 07/14/2020 3:49 PM
In ur & Geno's situation, it's a little easier to entice a short-term replacement, sheikh we've advertised as a good way to find out if you'd like to serve longer. The several months vs. almost two-year term gives someone the chance to check out the role without a major committement.

I also think it can be a good way to give potential board members a chance to get their feet wet without requiring a full term (or more) to be served. Some people will be intrigued while those who are terrified of being in over their heads can have a quick exit if they choose without feeling like "quitters". I mean, they can always resign but I think most people will stick with it until their term is up. And if they think they can be effective Directors going forward they can run in the next election with the benefit of some name recognition even if they're only appointed for a few months.

Quote:

Posted By KerryL1 on 07/14/2020 3:49 PM

Our bylaws also state we must maintain staggered terms. so we have way to do that too.

For my HOA it's often one step up, two steps back. Our Bylaws don't provide for staggered terms. Our bylaws have another flaw that hasn't been addressed in over 30 years: They don't say how long a term is. By "tradition" we've always had 2-year terms but where 2 years came from is anyone's guess.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

George,

If it's optional, I'd hold that seat vacant until the next election IF the neighborhood is fully represented by the remaining members AND the election wasn't contested (there was a "winner" and a "loser")

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Thanks ... I am aligned with the advice ...

1. If you don't need the spot filled for some reason, consider leaving it open so a person can be elected by the constituency
2. It is daunting to tell someone they are signing up for 2.5 years of a 3 year "sentence"
3. While our Board isn't political (or even much involved) some Boards could "load up" the Board

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