Vacancies on the board of directors

I live in an HOA that is covered by rcw 64.38 and managed by a non profit corporation covered under rcw 24.03a.

The articles of incorporation require vacancies filled by a special election and the term is until the next annual membership meeting.

The initial two (2) "Membership" Directors shall hold office until three (3) years from the date of 1/1/92. Thereupon a special meeting of the membership shall be held for the purpose of electing new Membership Directors to serve for a term of Two (2) years. In
the event of resignation of the Two (2) "Membership" Directors, a special meeting of the membership shall be held to elect a director to hold office until the next annual meeting.

Rcw 24.03a states the board can fill the vacancy unless the governing docs say otherwise.
http://app.leg.wa.gov/RCW/default.aspx?cite=24.03A.535

Rcw 64.38 state the board cant take any action that requires the vote of owners but it does say they can fill vacancies for the remaining term. This is confusing since the articles of incorporation require members to vote on vacancies.

(2) The board of directors shall not act on behalf of the association to amend the articles of incorporation, to take any action that requires the vote or approval of the owners, to terminate the association, to elect members of the board of directors, or to determine the qualifications, powers, and duties, or terms of office of members of the board of directors; but the board of directors may fill vacancies in its membership of the unexpired portion of any term.

http://app.leg.wa.gov/RCW/default.aspx?cite=64.38.025

Based on this information can the board fill a vacancy without the vote of the members.

The bylaws state they will elect someone to fill the vacancy. The board elected someone to fill a vacancy and thinks they should be there until the original board members term expires. I disagree.

CathyA3 appreciate you insightful comments on the apathy and setup of boards creating a problem. You have described some really true case scenarios I have seen myself. I have to think over what you stated and how that applied to my current condo. Thanks for posting.

Our Bylaws say:

Any director appointed by the Board shall be selected from the Voting Members of the Association and shall serve for the remainder of the term of such director.

I agree with Elle. That section you cited only applies to the two initial directors.

Is there a different section that talks about vacancies on the board in your governing docs?

If not, then the documents would be silent and corporate law would apply, allowing the board to appoint.

Brad
Typically ones docs will say how long the term is for an appointed to the BOD Member. Until the next election or until the end of the term of the person they are replacing. In our case, it is until the end of the term of the person they are replacing.

A little hard to follow, but it looks like the Board appointed someone to fill a vacancy. in 11/13. That new director would remain director until that term expires. It seems it did not expire in 1/24. There apparently were 3 seats up for election. The docs you cite show a maximum of 3 directors to be elected at an annual meeting. So an election of 4 directors in 1/24 would have been incorrect.

Were you, Brad, by any chance, that 4th candidate?

A separate topic is that the Board filled the Board vacancy in 11/23 in executive session, or via action without a meeting. That was in violation of your state statutes, I imagine, and of your Bylaws. It should have been done in an open meeting. And the Board did not post the minutes for owners to review. That also violates statute & your own docs, perhaps. I assume you still have not rec'd a copy of those minutes--even in draft form-- that you have requested properly (and perhaps repeatedly).

As you've noted here & elsewhere, violations of your governing docs & state a statutes by your Board seems commonplace.

Posters here & elsewhere already have shown you have some options. Some tried to offer sincere tips.

1. You already have tried to get elected to the Board, but you must try again. Hard work. 1/25 will come much sooner than you think!

2. You can gather others to seek a special meeting of the members to recall all or one or more Board members. Hard work.

3. Some of the Board's violation may be of the type where small claims court is a good option. I'm sure Terri will be happy to advise you on that option.

4. Sell.

In all honestly, Brad, I don't think continually listing your HOA's Board's questionable or illegal conduct here will do you or your community any good.

.

Sorry, my 1st line should read 1/23.

Gah! Again? My 1st line way above should say 11/23.

Brad,
It sounds like you're disappointed with the director they chose to fill a vacancy. Your OP was referencing how your board was originally formed - ie, directors were elected, and a mechanism was put in place to replace those directors should they both resign or be unable to fulfill their responsibilities. That doesn't govern how ongoing vacancies will be filled now that you're no longer in the "control" period of your association.

Your supplementary declaration states that you shall have an uneven number of directors on your BoD, but no less than 3. You currently have 7, which can only be changed by the membership (via vote). It's odd that you're going with 7, given that the follow on states that "one third of the total number of directors shall be elected each year, for a term of 3 years." This is mathematically impossible to comply with unless you actually have 9 directors - 1/3 of 7 is 2.3333. This means that for two years you will have 3 director seats up for election, and the third year you'll actually only have 2 seats up for election, violating the requirement that one-third the total number of directors are elected that year. Just a note for you to consider.

Your other post references the portion of your bylaws that allows the BoD to appoint someone to fill the remaining term of a member who resigns, is removed, dies etc. That's pretty standard, in places where it is legal the bylaws of most associations allows for a BoD to use appointment vs a special election to fill a vacancy. Some states allow that appointee to fill the entire remaining term (up to 3 years' term in your case) and some just allow the appointee to remain until the next regular election cycle. WA state law says appointed directors may remain for any length of time unless otherwise stated in the bylaws, so in your case that would mean that the appointee remains until the original term they are filling expires unless your bylaws state otherwise.

The part that is variable is how the appointment is handled. Here in VA, if our declarations allow for it (ours do) we have the ability to conduct business via electronic means (email) without violating any prohibitions on illegal working groups, provided that any decisions made outside of a regular meeting of our BoD is ratified during the open session of the next meeting. So for example, if we have a vacancy and we choose an individual to appoint to that seat, we don't need to hold any special meeting to do so nor poll the membership on their opinions. We just take a vote to ratify their appointment at our next regular meeting. The WA Nonstock Corporation Act allows this as well: "RCW 24.03.120 The directors or incorporators may take organizational action without a meeting if the action taken is evidenced by one or more consents in the form of a record describing the action taken and executed by each director or incorporator." This means that unless your bylaws specifically prohibit such an action, your directors could consent to the appointee via email, and as long as they maintain a record (preserve the emails) of the vote taken AND ratify it at your next regular meeting, they are within the right to do so.

So do your declarations and/or bylaws allow for your BoD to act in a similar fashion (via electronic means)? If the answer is yes, as long as they ratified the appointment of the person they chose at the next regular meeting (or any special meeting) of the Board of Directors, then they're good. If you declarations or bylaws do not allow for your BoD to conduct business via electronic means, then the answer is no, the appointment isn't valid. Without knowing what your bylaws specifically say about how an appointee is chosen and seated, I can't answer the last part for you.

It seems to me that they probably did things accordingly, but you're either not happy with who they chose, or you feel they didn't act accordingly. WA law RCW 64.90.445 with regards to "Meetings" states that: "(n) Even if an action by the board is not in compliance with this section, it is valid unless set aside by a court. A challenge to the validity of an action of the board for failure to comply with this section may not be brought more than ninety days after the minutes of the board of the meeting at which the action was taken, are approved or the record of that action is distributed to unit owners, whichever is later."

Shannon provides a fine summary, Brad: And Shannon cited: RCW 24.03.120 "The directors or incorporators may take organizational action without a meeting if the action taken is evidenced by one or more consents in the form of a record describing the action taken and executed by each director or incorporator."

Shannon continues: "This means that unless your bylaws specifically prohibit such an action, your directors could consent to the appointee via email, and as long as they maintain a record (preserve the emails) of the vote taken AND ratify it at your next regular meeting, they are within the right to do so."

I very poorly wrote below,* but will reword, From what you wrote, Brad, the board never has ratified their 11/23 decision at a regular meeting iso that it's memorialized in meeting minutes.

I wrote that the Board choosing a new director is executive session was illegal and still maintain that. What IS legal, despite my wording, is selecting such directors by taking action without a meeting. I did correctly add that they needed to have have put this Board decision in subsequent meeting minutes.. This, they have not done. OR has there been no one meeting since the 11/23 selection of a director?