adding new members to the board of directors in my HOA with conflicts with state statuates and our governing documents. Appointing of new members to t > HOA Forum

Forums > Homeowner Association > HOA Discussions

Subject: adding new members to the board of directors in my HOA with conflicts with state statuates and our governing documents. Appointing of new members to t

Prev Next

You are not authorized to post a reply.

Author

Messages

JerrellC
(Florida)

Posts:83

07/29/2010 3:19 PM
I am in an HOA of a 473 home subdivision in Florida. Our governing documents say that we have a three member board until it is increased by majority vote of a quorum of the members intitled to vote at a meeting called for such purpose. I take this to mean the members of the association are to vote in the additional members to the board by proxie vote and there must be a quorum to have a legal election. Now there seems to be a conflict with Chapter 617.0809Par (2) under board vacancy. It says that when a vacancy uccurs to a director elected by a class, chapter, unit, or group, the vacancy may be filled only by members of that class chapter, unit, or group or by a majority of the directors in office elected by such class, chapter, unit, or group. Paragraph (3) then goes on to say an increase in the number of members may be filled by by the board of directors but for a term until the next election of directors by the members. Chapter 720.306(2) say election of directors to the board must be held at the annual meeting or as provided in the governing documents. In our recent board meeting the president recommended adding two members to the board. This was approved by the current board. My question is does the president of the board have the authority to appoint new members? I wasn't sure until I read the above chapters and our governing documents. I believe new members must be voted in by the members of the association by proxie vote. I would like some feedback on this before I challange these appointments. Thanks JerrellC

MaryA1

Posts:0

07/29/2010 4:00 PM
Jerrell, Chapter 720 is silent on this therefore Chapter 617 would apply; specifically 617.0809(2). Copied below is the exact statute. As you can see the statute says the increase shall be made in the manner outlined in your bylaws. Therefore, according to what you have posted, a meeting must be called for the purpose of increasing the board of directors. If your bylaws allow for proxies then votes may be cast in person or by proxy. If the board voted to increase the size of the BOD then they have violated the state law and your bylaws. BTW, because your bylaws state a majority vote of a quorum of the members entitled to vote, this means only those members in good standing (not delinquent or in violation of the covenants) are counted. ----------------------------------------------------------------------------- 617.0803 Number of directors.-- (1) A board of directors must consist of three or more individuals, with the number specified in or fixed in accordance with the articles of incorporation or the bylaws. (2) The number of directors may be increased or decreased from time to time by amendment to, or in the manner provided in, the articles of incorporation or the bylaws, but the corporation must never have fewer than three directors. (3) Directors shall be elected or appointed in the manner and for the terms provided in the articles of incorporation or the bylaws.

JerrellC
(Florida)

Posts:83

07/29/2010 5:00 PM
MaryA1 This is esentially the same as our governing documents. Our documents also say election to the board shall be by secret written ballot. But paragraph (2) and (3) of 617.0809 seems to contradict each ether in filling a vacancy or adding new members. Chapter 720 say elections shall be held at the annual meeting "or" as provided in the governing documents. Our governing docs say members shall be voted in. PS The meeting quickly came to an end at this point with the announcement that the president is resigning after the meeting. He had also appointed another person to the board secretly. We now have a confusing mess in our association with whats going on. There's more to the story but I believe you have my point. Thanks JerrellC

KW3
(California)

Posts:146

07/29/2010 5:17 PM
Mary, Thank you for clearing up this issue. Although it requires the HOA members' approval for increasing size of BDs and after that filling the vacancies by election in most HOA governing doc, I see that there is also the provision in most HOA's gov doc that allow the current BDs to appoint new BDs to fill vacancies under the condition of e.g., the election failed to produce new BDs, etc. I would suggest Jerrell review the HOA's situation and check that if the Board president is acting to the bylaws' special provision of board appointing new BDs.

JerrellC
(Florida)

Posts:83

07/29/2010 6:37 PM
kw3(California) Our By Laws under Article III The Board of Directors may fill a vacancy by a direct vote of a quorum of directors. But in the case of adding new members they must be voted on by ballot of a quorum of members entitled to vote at a meeting called for such purpose.The governing docs must also be ammended to show a five member board. It seems that the good old boy system is still alive in our HOA. Thanks JerrellC Florida

MaryA1

Posts:0

07/30/2010 7:51 AM
KW, Increasing the size of the board and filling vacant positions on the board are two separate issues not to be confused with each other. In Jerrell's bylaws it states the board can only be increased by a vote of the members. Not all bylaws have this requirement. You must abide by what your particular bylaws state. Now with regard to filling vacant positions on the board most bylaws and state laws allow the board to do this by a majority vote. And, it's usually up to the discretion of the board as to whether they will make an appointment, call for a special election or just wait until the next annual election. It all depends upon how the bylaws and/or state law is worded; i.e. the BOD "shall" appoint, or the BOD "may" appoint. Generally speaking the current board members continue to serve beyond their term of office if no one has been elected to replace them as would be the case if the annual meeting were cancelled because of a lack of quorum. Only if one or more of the current board members were to resign would the board be authorized to appoint a replacement. I believe Jerrell's complaiant (or at least one of them) was that the board voted to increase the size of the board instead of calling a meeting for the members to vote on this. From what I read that is in violation of state law and the bylaws.

JerrellC
(Florida)

Posts:83

07/30/2010 3:51 PM
MaryA1 Thank you Mary that's exactly what I am saying. These appointments to the board may be OK but they should be voted in by the membership of the HOA. It would also help to know something about their qualications, experience, etc. Thanks JerrellC (Florida)

You are not authorized to post a reply.

Forums > Homeowner Association > HOA Discussions > adding new members to the board of directors in my HOA with conflicts with state statuates and our governing documents. Appointing of new members to t