Replacement of a Board of Director

Started by DavidM51 • 16 replies • 514 views

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DavidM51 (Florida)
Posts: 5

Posted:

We are a not for profit HOA. We have a director that is resigning

He will give his notice and it will take place at a later date.
Can he vote for his replacement.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By DavidM51 on 02/19/2023 4:46 AM
We are a not for profit HOA. We have a director that is resigning

He will give his notice and it will take place at a later date.
Can he vote for his replacement.

He can vote *if* he is still a director. However, there is no vacancy until he actually resigns - intention to resign isn't the same thing since he may change his mind, and then what do you do if you have too many directors?

On a practical note, the decision should be in the hands of the remaining board members who will have to work with the new person.

So I say no.

MichaelT21 (Arkansas)
Posts: 200

Posted:

I concur.

There is no position open until after he departs. Once he departs, he loses his director vote. Thus, he gets no vote.

If the current Board respects him, they can give him the floor for a few minutes to advocate who he thinks should replace him, if they choose.

ElleN (Idaho)
Posts: 4,420

Posted:

Florida statute 617.0807(2) says this:

"A resignation is effective when the notice is delivered unless the notice specifies a later effective date. If a resignation is made effective at a later date, the board of directors may fill the pending vacancy before the effective date if the board of directors provides that the successor does not take office until the effective date."

As long as the bylaws say nothing on this point, I take the above to mean the board, including the director who will resign in the future, has the legal right to vote on the successor. This vote will be binding.

Guidance from case law in another state suggests that a resigning director, who wishes to vote on her or his replacement, might want to use the following language in her or his letter of resignation:

"Please accept my resignation from the Board of Directors and as an officer of the Association [if an office is held]. My resignation will take effect upon the appointment of my successor. [This allows the the resigning director to participate in the selection of his/her successor.]"

See https://www.davis-stirling.com/HOME/D/Director-Resignations

KerryL1 (California)
Posts: 14,550

Posted:

Yes, as ElleN documents: So long as he is a director, he has a vote on his replacement. The Board should not vote on a replacement until they have the official letter of resignation from the director.

By the way, David, re: your "Subject": It should read: "Replacement of a Director," or "Replacement of a Board Member." You might see other details in your bylaws.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Yeah but...

Suppose Good ol' Joe resigns effective March 1, 2023, and the entire current board votes for Sweet Sue as the replacement. Two days later Good ol' Joe rescinds his resignation. Who gets yeeted? Unless the bylaws or state law address what happens in a case like this, the board will just be making things up as they go along.

I think it's safer to ajust wait until after March 1 to vote on the new person. I suppose some urgent business need could be driving the earlier vote, but I can't think of any examples of what that might be. (And in this case it doesn't sound like there is anything urgent, Good Ol' Joe just wants a say in who replaces him.)

KerryL1 (California)
Posts: 14,550

Posted:

If Joe resigned properly, he cannot "rescind" it. From what we see here, it's more likely it'll be difficult to find a replacement.

Btw, for some reason, many directors think they must "accept" the resignation of an officer or a director and waste meeting time by motioning, yak, yak. But check your Bylaws and state corporation codes, and it's possible there no need. No much acceptance is needed in CA and perhaps in many other states.

WendyM5 (North Carolina)
Posts: 1,522

Posted:

best thing to do is to have a new special election.
Most hoa BOD's are on a power trip and dont' do that. they follow the good old boy club rule book.

vis ta vie

KerryL1 (California)
Posts: 14,550

Posted:

Our Bylaws permit owners to fill a vacancy if the board fails to appoint someone. And sometime our Boards have left them vacant when we've been within a few months of an annual meeting and election.

It's unfortunate that Wendy has had so many awful personal experiences.

WendyM5 (North Carolina)
Posts: 1,522

Posted:

Quote:

Posted By KerryL1 on 02/19/2023 2:20 PM
Our Bylaws permit owners to fill a vacancy if the board fails to appoint someone. And sometime our Boards have left them vacant when we've been within a few months of an annual meeting and election.

It's unfortunate that Wendy has had so many awful personal experiences.

Really???

Appointing your own board members aka good old boys club method

Guess what your bylaws allow special elections as well. Funny how your boards choose the option that let's you control who's in power VS letting the community choose

It's unfortunate you think your opinion is more important than your communities opinion

vis ta vie

KerryL1 (California)
Posts: 14,550

Posted:

in the cases of resignations, If the board doesn't fill a vacancy, Owners have that option in my HOA. Also in my HOA, if a director is removed by action of the members or the board, only members may vote for a replacement.

What do your bylaws say on this point, Wendy?

WendyM5 (North Carolina)
Posts: 1,522

Posted:

my bylaws say about the same thing. most bylaws I've read say about the same thing. I've been reading many bylaws lately to prepare for amending ours.

I just think given the chance the BOD should prefer to let community decide is always the better choice.

vis ta vie

CathyA3 (Ohio)
Posts: 6,299

Posted:

I also think that allowing homeowners to decide these things is the better option - assuming you have enough informed owners actually voting to allow you to believe that they represent the will of the community. This is always debatable unless your elections enjoy a huge turnout.

In practice, for many communities having sufficient owner participation to hold an election is a luxury and often depends on things like proxies to achieve it. They may even have to drop their quorum percentages. So in these communities, the end result is a director who is supported by a very small minority of owners. It's just a good ol' boys club in a different form.

The other issue is that corporations have obligations, often time sensitive ones, that can't wait for the usual months-long begging, cajoling, and arm-twisting that may go into producing a valid HOA election. Vendors must be hired, bills must be paid, and they need a new member immediately. This isn't the board's fault - it's the fault of the apathetic membership, plus the reality that elections take time but appointments often don't. Sacrificing present needs in order to achieve a theoretical future benefit doesn't sound like good business.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By CathyA3 on 02/20/2023 6:30 AM
The other issue is that corporations have obligations, often time sensitive ones, that can't wait for the usual months-long begging, cajoling, and arm-twisting that may go into producing a valid HOA election. Vendors must be hired, bills must be paid, and they need a new member immediately. This isn't the board's fault - it's the fault of the apathetic membership, plus the reality that elections take time but appointments often don't. Sacrificing present needs in order to achieve a theoretical future benefit doesn't sound like good business.

I think that's really well said.

Regarding how directors are often elected at the regular annual meeting by only a small percentage of the ownership: I have come to view this more as the rest of the members being okay with whomever is elected, maybe especially as long as they themselves do not have to do the work.

I am getting away from calling this apathy. Instead and to me, this is often the silent majority's de facto stamp of approval for whatever director is elected.

KerryL1 (California)
Posts: 14,550

Posted:

I wrote that my HOA's bylaws say that if a director is removed by action of the members or the board, only members may vote for a replacement. Do yours really say that, Wendy?

I've been having second thoughts about the word "apathy" for years. I think the first who sort of questioned its hegemony in discussions of owners' non-involvement was JohnC, long ago, who said, "Hey, maybe folks are satisified." I'm thinking that's one possibility. If someone what's to start a thread on the taken-for-granted assumption that "apathy" rules, I'm in.

CathyA3 (Ohio)
Posts: 6,299

Posted:

I agree that "apathy" is probably the wrong word. The situation is too nuanced. Some of it is apathy, some of it is homeowners who are too overwhelmed with personal obligations, some of it is not understanding what their rights and responsibilities are. A lot of it is not understanding what's at stake and why it matters to them personally.

Some of this can be addressed through education. But the time crunch many people feel is not something a community association can address except around the margins (eg. online voting to make it more convenient).

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Nobody can answer that without your bylaws. Look for a section called “Vacancies” and post it here.

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