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Subject: Failure to fill a vacancy
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AnthonyS5
(Florida)

Posts:39


08/07/2019 1:54 AM  
Hi Everyone,

I am looking for answers/advice on what to do regarding a board members (VP) resignation. This happened in June by written letter (immediate), and as of now, there has been no appointment to replace him. He also retains keys to association property and still interacts with vendors as if he is a board member. Our bylaws state upon a resignation the board "shall" choose a successor. As I have volunteered for the position,as well as another member in the community no action has been taken. This board continually acts outside the scope of the bylaws, violates state law and the President herself has been quoted at meetings stating " I don't care about statutes". Our bylaws are clear in that the board shall consist of a Pres/VP/Sec/Tres, yet they refuse to take action and fill this important seat. Some history here....the current board continues to act outside the law in various ways. Management is no help as they continue to defend every action. We were scheduled to have a board meeting in July but the Pres cancelled it stating there was no new business to address. I ran for the board last year and although I lost a close race,since then I continue to call them out for improper procedures, violations of state law, uncovered numerous improprieties, and selective enforcement against certain residents including myself. In serving prior communities as a President, Sec & Treasurer, I always took action where appropriate and was always transparent with residents but this board acts more like dictators. Management says the board must find someone they can work with in "harmony" with in order to appoint them. This seems to be a pattern (all members in office since 2016) as the President did the exact thing in 2016, and didn't fill the vacancy until after the election. According to managements claim because they bylaws don't specify a timeline in which to appoint, they are free to leave the seat vacant until they do decide. We have one board meeting left (September) before our annual (November), any input on this is appreciated. Thanks in advance.
SueW6
(Michigan)

Posts:614


08/07/2019 2:02 AM  
What is the mandated size of the board, according to your bylaws?
AnthonyS5
(Florida)

Posts:39


08/07/2019 2:16 AM  
Thanks for the response. The Board shall consist of five Directors. Four being Executive Officers(President,VP,Secretary, Treasurer) and a remaining Director. See Below:

Section 4 Board of Directors, Committees:
4.1 Number and Term of Service; Qualifications:
A Number. The number of Directors which shall constitute the whole Board of Directors shall be five (5) persons.

Section 5. OFFICERS.
5.1 Officers - Required; Appointment: Removal: Resignation: Vacancies.
The executive officers of the Association shall be a president, a vice-president, a treasurer and
a secretary, all of whom shall be elected annually by a majority vote of the entire Board
then serving. The Board of Directors may, from time to time, appoint such other officers,
and designate their powers and duties, as the Board shall find to be required to manage
the affairs of the Association. If the Board so determines, there may be more than one
vice-president. Any officer may be removed with or without cause by vote of a majority of
the entire Board at any Board meeting. An officer may resign at any time by delivering
notice to the Association. 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 and
the Association accepts the future effective 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.
ND
(PA)

Posts:375


08/07/2019 5:58 AM  
It looks like you are confusing the Directors (Board of Directors) with Officers (Pres, VP, Treasurer, Secretary).

Per my read of your doc paragraphs, you are required to have 5 Directors and 4 Officers. That could actually mean as many as 9 different people (although some docs specify the Pres must also be a Director . . . meaning 8 different people). Typically though Directors also serve as the Officers, so you may only have 5 different people involved in governing the assn. It's not clear how yoru assn/ is actually set up . . . but definitely something for you to look into and understand.

All that said, the VP may have resigned as VP, but not as a Board Member . . . at which point another Director may be appointed to the VP position or someone else entirely may be appointed from outside the existing Board at some time in the future . . . timeline to do so doesn't seem to be specified.

If this person is still a Board Member, then his activity interacting with vendors and having keys and whatnot may still be appropriate.

If not still a Board Member, then that does beg questions.
AugustinD


Posts:2049


08/07/2019 6:07 AM  
Posted By AnthonyS5 on 08/07/2019 1:54 AM
Management says the board must find someone they can work with in "harmony" with in order to appoint them.


My understanding is that HOA attorneys say it is best to have all board positions filled, but not if the only applicants for a director's seat are 'not qualified' in the eyes of the board. I believe this is so even when there is a "shall" in the Bylaws' wording. Good luck in the next election.
KerryL1
(California)

Posts:6712


08/07/2019 8:40 AM  
It seems pretty clear, that the Board isn't going to appoint anyone to the vacancy, Anthony. And, with ND, make sure you understand the difference between offices and directors. You may be absolutely "right" concerning the issues you raise about the board, but your reminding them of those things will not get you an appointment tot he board. So start campaigning soon for the election in Nov.

How many board seats will be up for election?

JohnC46
(South Carolina)

Posts:8877


08/07/2019 10:45 AM  
Is this the MAY does not mean MUST argument?
GenoS
(Florida)

Posts:3364


08/07/2019 1:06 PM  
Posted By AnthonyS5 on 08/07/2019 1:54 AM
Hi Everyone,

I am looking for answers/advice on what to do regarding a board members (VP) resignation. This happened in June by written letter (immediate), and as of now, there has been no appointment to replace him. He also retains keys to association property and still interacts with vendors as if he is a board member.

I'd start by having the current president send him a certified letter asking/demanding that he cease acting as a board member and returning the keys in his posession. Start there. Escalate to an attorny-written letter if he doesn't respond positively in a week.
RichardP13


Posts:0


08/07/2019 1:08 PM  
Maybe Augustin can prepare a life threatening letter.
GenoS
(Florida)

Posts:3364


08/07/2019 1:22 PM  
Posted By AnthonyS5 on 08/07/2019 1:54 AM
Our bylaws are clear in that the board shall consist of a Pres/VP/Sec/Tres, yet they refuse to take action and fill this important seat.

I doubt your bylaws say that. A board of directors is not made up of officers. Conceptually, directors and officers are completely different things. Your bylaws should have a section re. Directors and another section re. Officers. Maybe they require officers to also be Directors (a/k/a/ Board Members), but they almost certainly don't say, "The Board is made up of a President, a VP, a Secretary and a Treasurer." It may seem like semantics, but it's a really important distinction.

I think you should get a better handle on all that before proceding. But procede you should because board members who openly state that they don't care about the statutes is a serious situation that should be dealt with.

Can you post excerpts from your bylaws that address directors and/or officers? Language that says the board MUST fill a vacancy would be key. I've seen a lot of bylaws and many say vacant officer positions SHALL be filled. I don't recall ever seeing that for directors where it's normal for the board to have the freedom to appoint or not appoint someone to a vacant director seat as they see fit. In that respect, your property manager may be technically correct: without a timeline or deadline to make the appointment, they can wait forever if they want.

What's that about making an appointment after the election? That doesn't make any sense. All vacant seats are up for grabs at the election. Why would there be a vacancy to be filled after the election? Again, your bylaws regarding elections should be examined carefully. In an HOA, Florida leaves all those details up to each HOA's governing documents.
KerryL1
(California)

Posts:6712


08/07/2019 2:15 PM  
Geno's idea looks good. Maybe also have the president notify the vendors involved in writing to no longer interact with him. I'd think there aren't very many?
BobB31
(Florida)

Posts:136


08/07/2019 2:31 PM  
"The Board shall consist of five Directors. Four being Executive Officers(President,VP,Secretary, Treasurer)"
Interesting, so your bylaws require 4 of the Directors to also be officers. The bylaws for my association require that only the President will also be a Director. The other 3 officers can be appointed from the entire membership.

What is not clear is whether an officer can relinquish the appointment as officer without also resigning from the Board. At this point, it might be that the Board still has 5 Directors and all that is left to do is assign the 5th director to be VP.

If the resignation was actually from the Board, then the last Director can be appointed VP while the vacancy is filled or not filled. I agree that a President who doesn't care about the statutes should be recalled. See this procedure for recalling directors in Florida
JohnC46
(South Carolina)

Posts:8877


08/07/2019 2:40 PM  
Anthony

It can be confusing, Directors, Officers, etc. Let me try and clarify:

Typically those elected to the BOD by owners are Directors.

The BOD then gets together and elects its Officers from among itself. Let us assume a 7 member BOD.

Jim Smith, President, Officer of the HOA, Director of the HOA, Member of the BOD.
John Jones, VP, Officer of the HOA, Director of the HOA, Member of the BOD.
Judy Adams, Treasurer, Officer of the HOA, Director of the HOA, Member of the BOD.
Dick Ames, Secretary, Officer of the HOA, Director of the HOA, Member of the BOD.
Chloe Taylor, Director of the HOA, Member of the BOD.
Sophia Downs, Director of the HOA, Member of the BOD.
Harry Ryan, Director of the HOA, Member of the BOD.

Some Officer positions can be combined like VP and Treasurer as I am. I believe the only two that cannot be combined are Pres and Secretary.

In the above, all Officers are Members of the BOD, but not all BOD Members are Officers and this where a lot of confusion arises.

Typically, Members of the BOD must be owners but there can be exceptions in ones docs.

Typically, Officers must be Members of the BOD but there can be are exceptions in ones docs.

Typically the BOD, via a BOD majority vote, can fill BOD vacancies. Some docs says they must. Some docs say they May.

One could resign from an Officers position and remain on the BOD.

It is not uncommon for a BOD to leave a vacancy or two on a BOD and wait until the next election. Our BOD of 5 quite often has operated with only 3 or 4 members. Our docs call for a BOD of 3 to 7 members with the BOD deciding how many.

I just poured myself a drink. Hope I got this all correct.
RichardP13


Posts:0


08/07/2019 6:53 PM  
I am going to disagree that the Board of Directors is run by officers. Who runs the meetings, who sets the agendas, who is the chief communicator, it's the President, or officer. The treasurer is in charge of the finances, the secretary takes minutes and keeps the records.

There are many associations where officers need not be directors, and directors need not be members or owners. I manage an association where only the president need be a director, but need not be a director.

I recently was terminated from an account because one director, demanded they be allowed to spend association funds as they see fit. Their governing docs do not require that directors be owners and I was approached to run for the Board. I am actually considering it.

So a Board refuses to appoint someone because they "couldn't work with the existing Board" is really RICH.

This post is not about a VP who resigned turning in their keys, you know that, right?
BobB31
(Florida)

Posts:136


08/08/2019 4:53 AM  
Posted By RichardP13 on 08/07/2019 6:53 PM
I am going to disagree that the Board of Directors is run by officers. Who runs the meetings, who sets the agendas, who is the chief communicator, it's the President, or officer. The treasurer is in charge of the finances, the secretary takes minutes and keeps the records.



Our bylaws state that the Chairman of the board runs board meetings, and that the President of the association runs membership meetings. These can be two different people. The only officer required to be a director is the president, and there is nothing to say the president also has to be the chairman.
GenoS
(Florida)

Posts:3364


08/08/2019 2:22 PM  
Posted By BobB31 on 08/08/2019 4:53 AM
Our bylaws state that the Chairman of the board runs board meetings, and that the President of the association runs membership meetings. These can be two different people. The only officer required to be a director is the president, and there is nothing to say the president also has to be the chairman.

I think HOA/condo bylaws that specifically designate the position of "Chairman of the Board" are rare. If it's in your documents then fine, but I don't think that type of board setup is common.
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