ELECTION PROCEDURES NOT FOLLOWED

In 2004, a board member on our 5 member board resigned his 3 year term that was to expire in 2007. Our bylaws state that in the case of a resignation, the board should appoint an individual to fulfill the unexpired term. In place of the appointment, the board held an election for the position with the term to expire in 2007, and the minutes from the 2005 HOA Meeting clearly state that the term will expire in 2007.
In 2007, the board did not hold an election, so now we have 3 vacancies on a 5 member board for the upcoming election this fall. The board's explanation is that the bylaws call for a board member to be elected for 3 year terms, so now it appears that every 3 years we will have a 3 person turnover on the board, which is not a good situation. The board made a mistake in not following the bylaws and appointing a replacement, but the board will not admit that a mistake was made. What is the best way to now revert to the original intent of our bylaws to have no more than a 2 person turnover in any election cycle?

TomW, Utah

Tom,

If the intent of your bylaws is to have staggered terms, this means at least one seat should be vacant each year. Since you state there was no election held last year, it appears to me the board is not clear on how the terms of office are to be determined. In the upcoming election, the past errors can be corrected by simply declaring some vacancies will be for only 1 or 2 year terms. Explain that some mistakes were inadvertently made in past years and the board wishes to get back on track. In the future the board should be careful to hold elections each year and keep track of what positions are open each year. The person who was elected to fill the unexpired term served one year longer than he should have; I really don't see that as being such a really big deal. These mistakes are made by boards from time to time. Best to just chalk it up to "human error".

I'm not sure the board erred in not appointing a replacement. Exactly how are the bylaws worded? If they say the board "shall" appoint a replacement that means they "must"; however, if it says they "may" or "should" that means they don't need to unless they decide to. Actually holding an election to fill the vacancy was the best thing to do as far as allowing the members to be involved. I don't think you can honestly fault the board for that!

If a motion is allowed from the floor, then make a motion to make one of the terms shorter then the other two so that you can restore the normal rotation. Short of that, the best resolution is to elect three people who can see the problem and correct it. If you have three year terms it would be best to have either two or one person up for election each year.