Do we have to replace director in case of resignation

Hello,

One of our directors resigned lately (VP) due to personal issues (HOA located at Florida)
We have 4 month left until the next elections.

Currently we are 4 directors left :
President
Secretary
treasurer
Director with no position
VP - vacant

per our bylaws - two occurrences suggest options which a bit conflicting:

Article 3 - board of directors
Section 4 -removal
"... in the event of .. resignation or removal of a director, his successor shall be selected by the remaining members of the board and shall serve for the unexpired term of his predecessor"

Article 5 - Officers
Section 2 - election/removal/vacancy
"the officers of the association shall be elected annually.. each officer shall hold office for one year .. ..unless he shall sooner resign. A vacancy in any office may be filled by appointment by the board. the officer appointed shall serve for the reminder of the term of the officer he replaces."

I discussed with the directors and we do not plan to have additional board meetings this year (Unless something urgent comes) and the remaining directors are ok to remain only 4 until end of term.

Per the bylaws or FS720 are we allowed to remain 4 members or is it mandatory to elect a fifth director for the VP position? per our bylaws how should the board choose? (as the two articles describing different things)

Thanks in advance.

We are a BOD of 5. Our docs say the BOD can (not must) fill a BOD vacancy and the term will be the remainder of what was left on the term. Typically when we have gotten below 5, we did not fill the vacancy if the next Annual Meeting was only a few months away. We never went below 3 (a Quorum).

I guess you don't have to have a meeting, right?

Follow your Bylaws.

In Florida we need to have an open forum for any decision made, so I guess.

It just that out bylaws are contradicting itself , in the first section it says we need to elect the next in line, and the second section that the board MAY replace.

Keep in mind that Officers and Directors are two different positions (even if filled by the same person).

Typically, as long as you have a quorum, you can leave the seat vacant.
That said, the wording you provided specifies "shall".
Therefore, you should try to fill.

Realistically, it likely won't happen before the next annual meeting.
You can go through the motions to keep anyone concerned happy.

Month 1 - announce the vacancy
Month 2 - review the volunteers
Month 3 - Vote to select (allowing time for the board to sleep on their decision)
Month 4 - Annual meeting.

I love the "going through the motions". Wonder why their is apathy in a community!

Thank you.

Asa,
I agree with TimB4's idea. It serves to great purposes. It will get people thinking about the open opportunity. It gives the Board some extra time to see who is out there and have some conversation with them. I do this all the time because I am always looking for the next Board member who can make our Board run better. If you find someone who turns out to fits your needs then appoint and if not let the time go by and wait for the Annual meeting.

“Shall” isn’t plain English. . . But legal drafters use “shall” incessantly. They learn it by osmosis in law school, and the lesson is fortified in law practice.

Ask a drafter what “shall” means, and you’ll hear that it’s a mandatory word—opposed to the permissive “may”. Although this isn’t a lie, it’s a gross inaccuracy. . . Often, it’s true, “shall” is mandatory. . . Yet the word frequently bears other meanings—sometimes even masquerading as a synonym of “may”. . . In just about every jurisdiction, courts have held that “shall” can mean not just “must” and “may”, but also “will” and “is”. Increasingly, official drafting bodies are recognizing the problem. . .Many . . drafters have adopted the “shall-less” style. . . You should do the same.

Bryan Garner, Legal Writing in Plain English, 2001, pp 105-06.

Bottom line is SHALL does not mean MUST.

Take it to the Supreme Court.....LOL

As it turns out, “shall” is not a word of obligation. The Supreme Court of the United States ruled that “shall” really means “may” – quite a surprise to attorneys who were taught in law school that “shall” means “must”. In fact, “must” is the only word that imposes a legal obligation that something is mandatory. Also, “must not” are the only words that say something is prohibited.

Here's Asa's citation. I'm suggestion that it means it' the Board and only the Board who'll fill the vacancy. It does NOT say they shall/must fill thee vacancy.

"... in the event of .. resignation or removal of a director, his successor shall be selected by the remaining members of the board and shall serve for the unexpired term of his predecessor"

It's very ambiguous and if Someone in Asa's HOA want to make a big deal out of it, they should get an HOA attorney's interpretation with the context of the Bylaw section.

For the archives (of course): No such blanket ruling exists. What JohnC46 posted is an urban legend well-circulated on the net. The urban legend is based on a mis-interpretation of a certain 1995 Supreme Court decision. In the 1995 decision, the problem was the use of passive voice.

South Carolina's condominium statute uses "shall" over 90 times. JohnC46's ridiculous claim is that passages like the following are now rendered meaningless:

SECTION 27-31-170. Compliance with bylaws, rules, and regulations; remedy for noncompliance.

Each co-owner shall comply strictly with the bylaws and with the administrative rules and regulations adopted pursuant thereto, as either of the same may be lawfully amended from time to time, and with the covenants, conditions and restrictions set forth in the master deed or lease or in the deed or lease to his apartment. Failure to comply with any of the same shall be grounds for a civil action to recover sums due for damages or injunctive relief, or both, maintainable by the administrator or the board of administration, or other form of administration specified in the bylaws, on behalf of the council of co-owners, or in a proper case, by an aggrieved co-owner.

SECTION 27-31-180. Records of receipts and expenditures.

The administrator or the board of administration, or other form of administration specified in the bylaws, shall keep a book with a detailed account, in chronological order, of the receipts and expenditures affecting the property and its administration, and specifying the maintenance and repair expenses of the common elements and any other expenses incurred. Both the book and the vouchers accrediting the entries made thereupon shall be available for examination by all the co-owners at convenient hours on working days that shall be set and announced for general knowledge.

To JohnC46's claim: Nonsense.