The HOA Board Created New Board Members, a power delegated to the home owners only

Hi, Okay as the title says the Board decided they would fill the 3 empty seats on our 9 person board just before the annual meeting. They have announced these 3 people as board members and one has been designated as Secretary.

Our Bylaws read:

"Nomination and Election of Directors. Election to the Board of Directors shall be by secret written ballot cast at the annual meeting, unless dispensed with by unanimous consent of those present at such meeting. At such election the Members or their proxies may cast, in respect to each vacancy, as many votes as they are entitled to exercise under the provisions of the Declaration. Directors shall be elected by a plurality of the votes cast. Cumulative voting shall not be permitted."

The board can only act to fill vacancies if someone resigns. I sent the registered agent a certified letter saying that the 3 board members they added could take no action, their appointments were null and void. That was two weeks ago; I got a notice through the management company app that the board and the attorney were discusing the situation.

SO my question is: How do I get the Board members before a judge to explain their actions?

It has been 10 days.

Normally a board, at their sole discretion, may fill vacant board seats until the next annual meeting. The question is the term of tbe appointment. Some boards believe they can fil the seat for the remaining term of that seat. Most HOA attorneys will advise the nomination expires at the next annual meeting. Depending on the declaration, either could be proper.

Georgia nonprofit corporation statute, if it applies (typically it will if your Association is incorporated), defers to the Bylaws on how to fill vacancies.

However, if the Bylaws are silent about vacancies, it specifies that the board may fill the vacancies and, once filled, serve the remainder of the vacancies term [emphasis added]:

14-3-811. Vacancies.
(a) Unless the articles or bylaws provide otherwise, and except as provided in subsections (b) and (c) of this Code section, if a vacancy occurs on a board of directors, including a vacancy resulting from an increase in the number of directors:
(1) The members, if any, may fill the vacancy; if the vacant office was held by a director elected by a class, chapter, or other organizational unit or by region or other geographic grouping, only members of the class, chapter, unit, or grouping are entitled to vote to fill the vacancy if it is filled by the members;
(2) The board of directors may fill the vacancy; or
(3) If the directors remaining in office constitute fewer than a quorum of the board, they may fill the vacancy by the affirmative vote of a majority of all the directors remaining in office.

(b) Unless the articles or bylaws provide otherwise, if a vacant office was held by an appointed director, only the person who appointed the director may fill the vacancy.

(c) If a vacant office was held by a designated director, the vacancy shall be filled as provided in the articles or bylaws. In the absence of an applicable article or bylaw provision, the vacancy may not be filled by the board.

(d) A vacancy that will occur at a specific later date (by reason of a resignation effective at a later date under subsection (b) of Code Section 14-3-807 or otherwise) may be filled before the vacancy occurs but the new director may not take office until the vacancy occurs.

(e) If there are no directors of a corporation without members, the Attorney General or any interested person may petition the superior court to appoint at least three directors or the minimum number required by the articles or bylaws. If the interested person is not the Attorney General, such interested person shall provide notice of the petition to the Attorney General.

14-3-805. Terms of directors.
(a) The terms of the initial directors of a corporation expire at the first meeting of members or directors for the election of directors or for such other period as may be specified in the articles of incorporation or bylaws. The articles or bylaws may specify the terms of directors. In the absence of any term specified in the articles or bylaws, the term of each director other than initial directors shall be one year. Directors may be elected for successive terms.

(b) A decrease in the number of directors or term of office does not shorten an incumbent director’s term.

(c) A director elected to fill a vacancy shall be elected for the unexpired term of the director’s predecessor in office.

(d) Despite the expiration of a director’s term, the director continues to serve until the director’s successor is elected, designated, or appointed and qualifies, or until there is a decrease in the number of directors.

I'll just note that if your bylaws do in fact say something like this, then if a director dies while in office or nobody runs for election, the community can't fill those positions at all. That would be corporate suicide, and bylaws that are that dysfunctional would have been amended a long time ago.

You can wait for a response but... expect the attorney to side with the board whether it acted properly or not because it's the board who pays the attorney's invoices.

I disagree. You say there were three empty seats. I expect the Georgia Corporate Code says the board may fill these empty seats.
o
Georgia law does say that. Our Bylaws do not. Directors may only be created at the annual meeting by the home owners, not the board. In our CCRs or Covenants, home owners agree to abide by the Bylaws and Covenants. So the Board members, as mebers of the association cannot create new directors/board members.

The depends, and it's why I have asked Walter my questions. I've seen Bylaws that are not specific about Board members, saying something like "no more than nine members" as opposed to saying exactly how many. I am curious if Walter's association has been operating with six board members, and only holding elections to maintain six members, and the board just now decided to expand it to nine. Hence Walter's use of the word "created" when describing the new members.

So for now I believe none of us have enough information to know what is happening.

I know, Walter, that you know what your Bylaws say. You've been studying them for years. I also seem to recall over the years a certain evasiveness. What exact citation, please, do your bylaws say about filling vacancies? The Board is not "creating" anything--these positions already exist .

When, Walter, do the terms expire of the 3 filled seats? Do any expire at this current annual meeting?

When is/was was the annual meeting? Were/are there any candidates?

While the Board has the "discretion" to fill vacancies, many bylaws state that the owners may fill vacancies if the Board does not.

"Does state law defer to the bylaws? If not, state law prevails."

I thought of that.

The Covenants say:

"Membership in Association. All Owners, by virtue of their ownership of a Lot, are automatically mandatory members of the Association and shall be entitled to vote on all matters upon which members of the Association are entitled to vote, pursuant to this Declaration and in accordance with the By-Laws. Subject to the provisions of the Declaration and the By-Laws, the Owner(s) of each Lot shall be entitled to one (1) vote for such Lot."

In accordance with the Bylaws. The seated Board Members have to abide by the Covenants and Bylaws. They can't just make stuff up, or use state law because they agreed not to.

A little background. Our annual meetings are normally in March. There were six seated board members with three seats up for renewal. And three empty seats. So the six sitting board members created three news seats to fill the board up to nine, the statutory limit. And that way, even if three new Board members were seated to deulute the former clique of corrupt members, the old clique would control six seats. That is not allowed. Only the Association members can fill the empty seats at an annual meeting.

Nobody disputes that they can’t make stuff up. The questions relate to the wording that describes the number of board positions, along with an explanation of how these positions became vacant.