BOD Terms of Office question

PMC just sent out applications for our BOD and indicates there are only (2) positions available. (The PMC website indicates the term for all (5) BOD expire this summer, but who knows)

In any case, summer of 2020, the community elected (5) new board members. Within the first 6 months, the top two Directors, who should have had the three year terms, resigned (moved out of the area). The remaining BOD appointed (2) new directors to fill the vacancies and per the bylaws, these (2) directors should have assumed the 'balance of the unserved term of their predecessor' which would be 3 years each.

2020 - elected (5) new Directors
2021 - no election, no terms have expired yet
2022 - the (2) two year terms were up, we had an election but didn't meet quorum, so these two directors stay on for another 2 year term?
2023 - PMC indicates there are only (2) positions up for election but I think there should be 3, what am I missing

Here is the legalese - Note, his was one huge paragraph/wall of text and I broke it up into individual sentences. It looks like to me that we should have (3) openings this year, but specifically states "the term of office of the three (3) Directors receiving the highest number of votes at the first annual meeting"

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At the first annual meeting of the Members, and thereafter at each annual meeting of the Members coinciding with the expiration of a Director's term of office or at which a vacancy on the Board exists, the Members shall elect new Directors by secret written ballot as provided in these Bylaws.

All positions on the Board shall be filled at the first annual meeting.

If an annual meeting is not held, or the Board is not elected thereat, the Board may be elected at any special meeting of the Members held for that purpose.

Each Director shall hold office until his successor has been elected or until his death, resignation, removal or judicial adjudication of mental incompetence.

The term of office of the three (3) Directors receiving the highest number of votes at the first annual meeting shall be three (3) years and the term of office of the two (2) Directors receiving the next highest number of votes at the first annual meeting shall be two (2) years.

At each annual meeting thereafter, new Directors shall be elected to fill vacancies created by the death, resignation, removal, judicial adjudication of mental incompetence or expiration of the terms of past Directors.

The term of office of each Director elected to fill a vacancy created by the expiration of the term of office of the respective past Director shall be two (2) years.

The term of office of each Director elected or appointed to fill a vacancy created by the resignation, death or removal of his predecessor shall be the balance of the unserved term of his predecessor.

Any person serving as a Director may be reelected, and there is no limit on the number of terms which he may serve.

Cumulative voting must be used in the election of Directors for any election in which more than two (2) Directors are to be selected, subject only to the following procedural requirements: A Member may cumulate his votes for any candidate for the Board if the candidate's name has been placed in nomination prior to the voting and if such Member, or any other Member, has given notice at the meeting prior to the voting of such Member's intention to cumulate votes.

If a Member cumulates his votes, such Member may cast a number of votes equal to the Member' s share of the voting power as set forth in the Master Declaration, multiplied by the number of Directors to be elected.

Honestly, I don't think it really matters. The basic idea is that 2 directors are up some years and 3 directors are up others.

The pandemic threw everything into a weird situation as annual elections couldn't be held as normal in 2020 until Boards figured out a new way of doing business.

Our community has a similar experience, but all of our terms are for three years. The president and I ended up going through several years of board meeting and annual meeting minutes to figure out who started when, was the member appointed to serve to finish out a term or fill a vacancy. It got more confusing when some board members were appointed, tgenbekected,then elected, resigned- and were appointed again. We eventually got it straight and then put in the minutes when everyone was up for reelection, so we could keep track if everyone's comings and goings.

You will probably have to do the same, startingveith your first annual meeting as max suggested. You may still end up with only two open slots, but you'll know where you stand. Ideally you have two people up one year and three the next, or you may have a 2-2-1 scenario they should all work, because it's good yo have a mix of new and experienced members. I also think it's easier if everyone has tge same length of term - and now you know why.

You're correct in that the two who were up in 2022 get another two years because there was no quorum. Assuming the terms started this year, they should be up in 2025. If you still can't figure it out, go with the two oldest members.

I can't find anything else in our Bylaws, or other governing docs

The Bylaws clearly state:

"The term of office of each Director elected to fill a vacancy created by the expiration of the term of office of the respective past Director shall be two (2) years."

So basically we have (5) new Directors filling a vacancy by the expiration of the term of office in 2020. And someone, somehow, decided to split them into two groups. 2 year terms and 3 year terms. I don't know how many positions were available last year, so I guess that will be my next step to try to find out.

Any idea what document I could ask for a copy of that they would have used in 2020 to decide who got a 3-year term and who got a 2-year term?

So far I think the argument for all five positions being up for election in summer 2023 is good. Of course a rogue board will say otherwise.

If you want to pursue this, then IDR is the first step. Your letter asking for IDR needs to be succinct, emotion free and just-the-facts. Post your draft here, and I will try to help.

Like many HOA's we missed an entire year with no Annual Meeting so in order to return to staggered terms, we had a vote for all 5 BOD positions. Top 3 vote getters, two year terms. Next 2 vote getters one year terms.

This is just basic math. look at your AOI and date your hoa was incorporated lets say it was 1/1/2020
In 2022 first terms expire and 2 people get elected
in 2023, second terms expire and 3 people get elected.
2024 = 2 people
2024 = 3 people

no one cares about that time when the HOA president was shot and someone replaced him
or that time when all 5 board members resigned and needed to be replaced.
or that time when covid made the annual meeting get cancelled.

terms are based on dates, not extenuating circumstances.

the board members can draw straws or play rock paper scissors, etc. to figure out when their term ends. that's on them. Don't let there ignorance somehow interrupt basic grade school math.

James,

Expecting that your Association is incorporated, corporate statutes would also apply.
Per those statutes, at the end of ones term, the sitting director would continue to serve until their replacement is elected or they resign.

Since you did not have a quorum at the last meeting, the sitting directors who were up for reelection would continue to serve until the next election (when their replacement would, hopefully, be elected). The new Director would then serve out the remainder of the term that started the year before.

However, if the remaining board members appointed those same people to the seats, then they would start serving a new term and those seats would not be up at the next meeting.

Because, in my opinion, it doesn't.

The new term started already but the sitting directors stayed in office, CA Corporations Code §7220.
They were not appointed or elected to that new term, so they don't serve the new full term (that started at the election where no quorum was obtained).
They would simply serve, per the code, until their replacement had been elected.
The next election would be at the next general meeting.

Of course, this is why attorneys stay in business. A simple issue that has multiple opinions on how it would be settled.
To determine which opinion must be followed, one would need to obtain a ruling from a court.
Otherwise, the interested parties involved can utilize whichever interpretation they all agree with.
That interpretation may or may not pass legalities, but it does save money being spent in court.

Ellen,

Per the initial posting (emphasis added):

The term of office of each Director elected to fill a vacancy created by the expiration of the term of office of the respective past Director shall be two (2) years.

The new 2 year term started when the last term expired. The seat for that term remained vacant, as there was no quorum to hold an election. However, per statute and the OPs bylaws, the sitting director remains in office until the replacement is elected.

Some will likely look at the same sentence and say that it plainly says that the term of one elected shall be two years.
However, that is not the intent of the sentence or the section of bylaws.
The intent is to have staggered terms and the new term starts when the old term expired.

I am homed in on the "elected" part of the above. The director who continued because there was no quorum at the annual meeting was not elected.

You seem to count the start and end of terms based on the calendar. Because of the wording in the bylaws and statute, I count them in part based on when someone was elected or appointed. Terms depend on the specific director's circumstances of taking office (appointed; elected; continuing because of lack of quorum; et cetera).

You say this is the intent. I say the intent remains unclear when reading the entirety of what the OP posted.

I think you are also overlooking the option this HOA has to hold a special meeting to elect directors when an annual meeting is not held.

There seems to be little agreement in this thread about how many seats should be open at the coming annual meeting. To me, this spells defeat for the OP. He will have to claw his way to getting himself and others he likes elected, with the board deciding each year which seats are up for election, hopefully with at least some reason to support their decision.

The way to solve this dilemma is to just eliminate the quorum for the election of directors. I would support getting rid of quorum altogether for all matters.

To those who say they don't want a small minority having the ability to control things, I say I fear boards having the power they wield over the members themselves making decisions.

I too support getting rid of quorum for owners' meetings.

I also support requiring HOAs to offer at least one of the following for all owners' votes: online voting or absentee ballots.

You say this is the intent. I say the intent remains unclear when reading the entirety of what the OP posted.