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Subject: Term 1 year or 2 year?
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JanineR
(Tennessee)

Posts:190


09/09/2021 12:26 PM  
Term 1 year or 2 year?


We have 5 directors in our COA.
In 2020 two directors terms expired.
There was no quorum at the annual members meeting.*

Following the member's meeting, the remaining directors voted for the previous two directors to continue as directors.

One has since resigned. The other, 'Director Sally' for easier reading, remained.

However, it is being assumed that Director Sally's term has been reset for another 2 years, instead of until the next members' meeting. (We are very likely to have a quorum at the 2021 meeting).

The question is: Does Director Sally have a term from 2020-2022 (two years) or to 2020-2021 (next annual meeting).

My inclination is that it is until this upcoming annual meeting, but maybe others can catch a reason why it was reset to 2 years


* (miscounted, but declared no quorum, so using that)

Tennessee Condos, 145 units

------------------
BYLAWS BELOW
------------------

a) After the Developer Control Period the Board of Directors shall consist of three (3) persons all of whom shall be Unit Owners, or, in the event any Unit shall be owned by a partnership, corporation, limited liability company or fiduciary, such person shall be a partner, an office of the company, the fiduciary, or an officer of the fiduciary, as the case may be.

subsequent amendment:
Change paragraph (a) to section 4: ''After the Developer Control Period the Board of Directors shall consist of Five (S) persons,"

b) At the first meeting of the members of the Association following the Developer Control Period, three (3) persons shall be elected to serve as the Board Of Directors. The term of office of those elected shall be two (2) years. The election shall be by ballot and by a plurality of the votes cast, each member voting must cast his or her vote(s) for as many nominees as there are vacancies to be filled, but there shall be no cumulative voting.

subsequent amendment:
Change paragraph (b) to section 4: "At the first meeting of the members of the Association following the Developed Control period, Five (5) persons shall be elected to serve as the Board of Directors."

c) Except as to vacancies provided by removal of Directors by· members, vacancies in the Board of Directors occurring between annual meetings of members shall be filled by the remaining Directors until the earlier of (i) the next annual meeting of the members, and (ii) the date of a special meeting called pursuant to these By1aws for the purpose of filling the vacancy, at which time a Director shall be elected to fill the remaining term of any such vacancy.


------------------
STATE STATUTES
------------------
Horizontal Property Act § 66-27-403. Board of directors and officers

Non-profit corporation §48-58-104. Election, designation, and appointment of directors
KellyM3
(North Carolina)

Posts:1775


09/09/2021 12:40 PM  
No quorum would constitute the need for "status quo" and the previously expired terms never expired at all.

Regarding the resignation, you need to call a meeting and fill it to complete the vacant term of office.

That's how I see it.

JanineR
(Tennessee)

Posts:190


09/09/2021 12:51 PM  
Posted By KellyM3 on 09/09/2021 12:40 PM
No quorum would constitute the need for "status quo" and the previously expired terms never expired at all.

Regarding the resignation, you need to call a meeting and fill it to complete the vacant term of office.

That's how I see it.





Thanks Kelly

I should have added: our annual meeting is in three weeks.

They have been running on a four person board since the resignation.

The concern is if Director Sally's term is up at this upcoming annual meeting.
SheliaH
(Indiana)

Posts:4175


09/09/2021 12:52 PM  
If both member terms expired in 2020, I would think the next one would be 2020-2022 if these are two-year terms. That also means I agree with kelly on the resignation - whoever you can find to fill that spot stays until 2022.

When I was on the board, there was a point where we were just as confused as you appear to be as to when terms started and ended because we'd had a flurry of resignations, appointments and elections. We ended up reviewing the last few years of board minutes and annual meeting minutes to map out when each person's term officially started and how, up to the current year. It ended with everyone facing an election (or re-election) over the next two years (we had 5 board members so elections are staggered).

You may want to consider doing that in your own community. And maybe it's time to take a good look at your bylaws and update them to specify exactly what happens when someone steps down or is recalled, so you'll know what to do. As various members are replaced, it may be a good idea to state when everyone's terms will end so no one forgets. You can put it on your newsletter or website like:

Mr. X - term expires 2022
Ms. Y- term expires 2023
Mrs.Z- term expires 2022
Mr. A- term expires 2023
Mr. B- term expires 2024
JanineR
(Tennessee)

Posts:190


09/09/2021 12:59 PM  
Thanks Shelia
JanineR
(Tennessee)

Posts:190


09/09/2021 1:00 PM  
I am mostly interested in this part of the bylaws, and what supersede that:



"c) Except as to vacancies provided by removal of Directors by· members, vacancies in the Board of Directors occurring between annual meetings of members shall be filled by the remaining Directors until the earlier of (i) the next annual meeting of the members, and (ii) the date of a special meeting called pursuant to these By1aws for the purpose of filling the vacancy, at which time a Director shall be elected to fill the remaining term of any such vacancy."
MaxB4


Posts:1211


09/09/2021 1:08 PM  
The Members, according to Bylaws, elect directors. If there is no quorum, and no adjourned meeting, the directors should remain only until the next election. If a director resigns, the board can appoint until the next election, again, it's the Members that elect directors, not the directors themselves. Appointments should only last until the next election.

Obviously, the Bylaws will control, but that is what I would do if Bylaws were silent.

In the case of the OP, if the Bylaws are silent, all five should be up for election. In addition, someone needs to keep track of when and who are up for election each cycle.
AugustinD


Posts:1585


09/09/2021 1:13 PM  
I think the OP raised a similar issue recently, but it pertained to officers not directors.

Here's my approach to the latest directors' term and Rubik's cube problem:

Posted By JanineR on 09/09/2021 12:26 PM
Term 1 year or 2 year?
We have 5 directors in our COA.
In 2020 two directors terms expired.
There was no quorum at the annual members meeting.*

Following the member's meeting, the remaining directors voted for the previous two directors to continue as directors.

One has since resigned. The other, 'Director Sally' for easier reading, remained.

However, it is being assumed that Director Sally's term has been reset for another 2 years, instead of until the next members' meeting. (We are very likely to have a quorum at the 2021 meeting).
-- If Sally never formally resigned, her seat was never vacated. Hence Bylaw (c) does not apply.

-- I find nothing applicable from the Tn Horiz Prop Act. Again, and per the wording in the Horiz Prop Act, this is because Sally's seat was not ever vacated.

-- I think the Tn Nonprofit Corp. Act holds the answer. Per Tn Code 48-58-105, "Despite the expiration of a director's term, the director continues to serve until a successor is elected, designated or appointed and qualifies, or until there is a decrease in the number of directors. No quorum was achieved at the annual owners' meeting. per the Tn Nonprofit Corp Act Sally remains as a director.

-- If Sally never resigned, then the Board's vote/appointment of Sally was either superfluous, meaningless or both.

-- Sally's original term expired at the annual meeting in 2020. After the annual meeting, she continues as a director only because the nonprofit corp statute says that, under these circumstances, she continues. But she continues only until a successor is elected, designated or appointed etc.

-- If she does not resign, then there's no reason for the board to appoint anyone else.

-- When is the next time a successor may be elected? I figure there's no point in a special meeting to attempt quorum again. Plus a special meeting costs time and money.

-- I say therefore that Sally's term lasts until the next annual election. This election would be in 2021. As it happens, the annual meeting and election for 2021 turns out to be a few weeks from today.

-- "Reset" is jabberwocky that is inconsistent with the Bylaws and statutes.

-- Don't expect the other directors to be reasonable about this.

-- Sally could formally resign and be appointed the next day. Whence this discussion needs to reset. Let's not do hypotheticals.
JanineR
(Tennessee)

Posts:190


09/09/2021 1:39 PM  
Interesting,

I did not consider that if Director Sally did not resign, but her term expired, it is not considered a "vacancy".

I agree that the directors doing a vote last year to reinstate the expired term directors back was not needed
per Tn Code 48-58-105, "Despite the expiration of a director's term, the director continues to serve until a successor is elected, designated or appointed and qualifies, or until there is a decrease in the number of directors."

I agree that the expired director should remain only until the next election, but still can't find actual wording that says that.

I do have some support from other Board members if I can word it correctly.


AugustinD


Posts:1585


09/09/2021 1:54 PM  
Posted By JanineR on 09/09/2021 1:39 PM

I agree that the expired director should remain only until the next election, but still can't find actual wording that says that.

I do have some support from other Board members if I can word it correctly.
-- On the one hand, arguing as you, a few others here, and I say involves a "reasonable person" call about the meaning of "until a successor is elected." (To review: Tn Code 48-58-105 says, "Despite the expiration of a director's term, the director continues to serve until a successor is elected, designated or appointed and qualifies, or until there is a decrease in the number of directors. )

-- On the other hand, what is there to argue that Sally's term is two years, and so she need not stand for election until 2022? Only if one lies about what the bylaws and statute say can one argue that Sally serves until at least the election in 2022.

-- Perhaps one can argue that the board has discretion in interpreting the meaning of "until a successor is elected." I am stretching a bit here, but I think it is appropriate to do so, if only for liability reasons: Per the case law, where a board has discretion, it must be exercised reasonably.

-- I will toss in once again what the attorney in my town who wrote the common interest community statute forty years ago said in her opening remarks to a HOA board considering hiring her: "I expect HOA/COA Boards to be fair and reasonable." This remark was a nugget of wisdom reflecting not merely this attorney's abilities to communicate well with laypeople. To me, the remark also reflects the case law for the many circumstances that arise where a board lacks clear direction from statutes or covenants. The trial courts want to see boards be reasonable.
JohnC46
(South Carolina)

Posts:11423


09/09/2021 1:57 PM  
Janine

Basically your BOD appointed the two to be Members of the BOD. According to:

c) Except as to vacancies provided by removal of Directors by· members, vacancies in the Board of Directors occurring between annual meetings of members shall be filled by the remaining Directors until the earlier of (i) the next annual meeting of the members, and (ii) the date of a special meeting called pursuant to these By1aws for the purpose of filling the vacancy, at which time a Director shall be elected to fill the remaining term of any such vacancy.

I say her (or anyone appointed by the BOD) term expires at the next Annual Meeting or at a Special Meeting called to fill the vacancy. Easy peasy.
MaxB4


Posts:1211


09/09/2021 1:58 PM  
In regard to "Sally", that term was for until the next election, so whoever is elected for that slot, is in for one year.

The directors were out of line for voting to have the two directors remain. Again, only members elect directors.

What do your Bylaws say about adjourned annual meetings and does quorum get reduced, say in half?
LoriM15
(Florida)

Posts:29


09/09/2021 2:44 PM  
Posted By MaxB4 on 09/09/2021 1:58 PM
In regard to "Sally", that term was for until the next election, so whoever is elected for that slot, is in for one year.

The directors were out of line for voting to have the two directors remain. Again, only members elect directors.

What do your Bylaws say about adjourned annual meetings and does quorum get reduced, say in half?




Would it make any difference if instead of saying the directors voted to have the two directors remain, actually the two directors ran unopposed so were automatically elected for another two-year term?
LoriM15
(Florida)

Posts:29


09/09/2021 2:44 PM  
Posted By MaxB4 on 09/09/2021 1:58 PM
In regard to "Sally", that term was for until the next election, so whoever is elected for that slot, is in for one year.

The directors were out of line for voting to have the two directors remain. Again, only members elect directors.

What do your Bylaws say about adjourned annual meetings and does quorum get reduced, say in half?




Would it make any difference if instead of saying the directors voted to have the two directors remain, actually the two directors ran unopposed so were automatically elected for another two-year term?
JanineR
(Tennessee)

Posts:190


09/09/2021 3:17 PM  
Good point to add on.

Sally did not run in 2020.
Two directors terms were up and three people ran. So it was not unopposed.

MaxB4


Posts:1211


09/09/2021 4:19 PM  
This is why state legislators should eliminate quorum requirements for the election of directors.
JanineR
(Tennessee)

Posts:190


09/09/2021 7:55 PM  
This has all been really useful dialogue.

My inclination is towards that Sally's term is up.
But this is also what I want. So with that I am hesitant without clear wording. And not confusing the two.

I stand by that ideally member's should vote for directors.
In our association, not one of our directors was voted in by members for at least six years.
There are also no minutes for 4 of the 5 directors being 'voted' in as directors, including Sally. And she has been a director since 2016.

I am not on the board, but I've been working really hard to turn this around, and have made many up-hill successes:

*The quorum is being recognized at 30% this year instead of 51% per our Bylaws, but incorrectly administered the last few years
*The unit count are being counted towards the quorum instead of 'people', per our Bylaws, but incorrectly administered the last few year
*Directors are 5 not 3, incorrectly counted by lawyer and MC this year. But turned around before notice went out.
*If, which is unlikely, there is no quorum this year, we don't have to wait another year, we as members, can adjourn to an earlier date.

I have been confident about those things, because the wording is cut and dry, and careful of how I approach it.

What I am not confident about is this 'Sally' question, and that's why I'm going back to it again.

So far 8 people are running for 4 open directors terms, which is amazing.

What I would like is for Sally just to run again and not get a free pass.

But hesitant if I am wrong, since I was confident about the other progress.
AugustinD


Posts:1585


09/09/2021 8:51 PM  
Try this on the Board:

===
Dear Board of Directors,

Respectfully, I believe Director Sally's seat must be considered open for the purposes of the upcoming 2021 election. My reasoning follows.

Only two paths, that are consistent with the Bylaws and state statute, are possible for determining what Sally's term is. These are:

Path 1
Sally's term expired a year ago at the last election. The Nonprofit Corp Act at section 48-58-105 states, "Despite the expiration of a director's term, the director continues to serve until a successor is elected, designated or appointed and qualifies, or until there is a decrease in the number of directors." I understand Sally never resigned as a director. Also arguably the Board did not appoint Sally to her position, since per the Nonprofit Corp Act, her seat was never vacant. To me, this now begs the question: Has Sally's term expired? The Bylaws state that the term of office is two years. So yes, Sally's term expired almost a year ago. What is the term of a director who continues as a director simply because no election could be held (due to lack of quorum)? Neither the Bylaws nor statutes say anything about 'resetting' a director's term just because a successor could not be elected at the annual meeting (due to lack of quorum). I believe Sally's two-year term remains expired. Per the Nonprofit Corp Act at section 48-58-105, Sally serves only until the next election, which of course is in a few weeks. If a successor is elected at the upcoming election, or if Sally resigns, then Sally is no longer on the board.

Path 2
At last year's annual meeting a quorum was not reached. Subsequently the remaining directors appear to have implicitly or explicitly declared Sally's seat to be vacant. The record shows that the remaining directors then voted for Sally to be appointed to the board. This appointment is consistent with Bylaw C. Furthermore, other than by board appointment, the bylaws provide no other mechanism by which a board can fill a seat that is vacant between annual elections.

Importantly, Bylaw C also says that, as a director appointed between annual elections, Sally serves only until the next annual meeting of the members. ​

For the above reasons, I believe Sally's seat must be considered open for the purposes of the upcoming election.

Would you please consider consulting the COA attorney to confirm this?

Thank you,

===



Else short of hiring an attorney, all you can do is politely ask.




MaxB4


Posts:1211


09/09/2021 10:33 PM  
Posted By JanineR on 09/09/2021 7:55 PM
This has all been really useful dialogue.

My inclination is towards that Sally's term is up.
But this is also what I want. So with that I am hesitant without clear wording. And not confusing the two.

I stand by that ideally member's should vote for directors.
In our association, not one of our directors was voted in by members for at least six years.
There are also no minutes for 4 of the 5 directors being 'voted' in as directors, including Sally. And she has been a director since 2016.

I am not on the board, but I've been working really hard to turn this around, and have made many up-hill successes:

*The quorum is being recognized at 30% this year instead of 51% per our Bylaws, but incorrectly administered the last few years
*The unit count are being counted towards the quorum instead of 'people', per our Bylaws, but incorrectly administered the last few year
*Directors are 5 not 3, incorrectly counted by lawyer and MC this year. But turned around before notice went out.
*If, which is unlikely, there is no quorum this year, we don't have to wait another year, we as members, can adjourn to an earlier date.

I have been confident about those things, because the wording is cut and dry, and careful of how I approach it.

What I am not confident about is this 'Sally' question, and that's why I'm going back to it again.

So far 8 people are running for 4 open directors terms, which is amazing.

What I would like is for Sally just to run again and not get a free pass.

But hesitant if I am wrong, since I was confident about the other progress.



I'm curious, how is it you only have 4 open seats. There should be 5.
CathyA3
(Ohio)

Posts:2394


09/10/2021 5:48 AM  
My take on it: start with the terms and work backwards from there.

I assume you have staggered terms (ie, they don't all expire at once). Terms are staggered for continuity: you don't want 5 newbies filling the board positions unless you have no choice.

You also need to know whether or not appointed directors (as opposed to ones elected by the membership) serve for one year only, or if they simply complete the vacant term (no matter if that is 6 months or two years). Doing it the second way allows you to preserve the staggered terms more easily and allows you to keep expertise on the board - otherwise you'll tie yourself into knots and can lose the staggering, along with the benefits that it provides.

Personal opinions: First, preserving the staggered terms is more important since they exist for the benefit of the association/corporation. Second, no director is entitled to serve for any particularly length of time since ultimately all of them serve at the pleasure of the membership and can be removed at any time with or without cause. (I also think the "appointed directors serve only one year" requirement is silly. It's not like the average HOA/COA is drowning in volunteers to serve on the board. It also forces the board to lose whatever expertise that director had developed. Finally, there's nothing to stop the board from re-appointing that person if they're still willing to serve. It's a whole lot of hoopla for a potentially worse outcome.)

Given that:

1. Draw a graph showing each of the terms along with their start and end date(s).

2. Fill in the slots that you know about. Sally is still a director serving out the term for which she was elected because she did not resign - you don't need to do anything for this one unless she was appointed and you're dealing with this one-year only requirement. In which case, re-appoint her if she's willing to serve.

3. Appoint new directors to the open term(s). If your bylaws or state law says that appointed directors only serve for one year rather than until the end of the term, and one of the vacant terms was is two years long, hope that the person you appoint is willing to keep on serving and plan to re-appoint.
AugustinD


Posts:1585


09/10/2021 8:31 AM  
JanineR,

I now think the following section of the nonprofit corporation act is thee controlling law that says that Sally's term at this point is one year (starting in 2020, right after the 2020 annual election):

Section 48-58-105 - Terms of directors generally
(a) The charter or bylaws must specify the terms of directors. Except for designated or appointed directors, the terms of directors may not exceed five (5) years. In the absence of any term specified in the charter or bylaws, the term of each director shall be one (1) year. Directors may be elected for successive terms.



If the board wants to shift gears and say they appointed Sally to fill a vacancy, then Bylaw C applies, and Sally again may serve only until the 2021 election (in a few weeks, and assuming a successor is elected).

JanineR
(Tennessee)

Posts:190


09/10/2021 11:52 AM  
Posted By MaxB4 on 09/09/2021 10:33 PM
Posted By JanineR on
I'm curious, how is it you only have 4 open seats. There should be 5.




I agree it should be 5 too, not 4.
That's why am reaching out here for suggestions of how to handle this.

JanineR
(Tennessee)

Posts:190


09/10/2021 12:11 PM  
Posted By CathyA3 on 09/10/2021 5:48 AM
My take on it: start with the terms and work backwards from there.


You also need to know whether or not appointed directors (as opposed to ones elected by the membership) serve for one year only, or if they simply complete the vacant term (no matter if that is 6 months or two years). Doing it the second way allows you to preserve the staggered terms more easily and allows you to keep expertise on the board - otherwise you'll tie yourself into knots and can lose the staggering, along with the benefits that it provides.






Unfortunately, the Board has not honored the Bylaws for years, and members are now understanding this.
It has been the buddy system between directors of voting in other directors.
Not one has been voted in by members.

We do have staggered terms.
With this monumental annual meeting coming up, the current procedure is that the highest 3 votes will get 2 year term and the 4th vote will get 1 year term. That will start the staggered system clean again.

My issue is that I believe that it should be the highest 3 votes will get 2 year terms and the 4th and 5th highest will get 1 year. And that Sally doesn't get a free pass.

Currently two existing board members are running. This is a huge big step, as in the past they just expected (and helped facilitate) no quorum and would get another two years according to them. Out of the two, one is wonderful, and I have been campaigning to get her re-elected, and it is looking good. And that will provide a lot of continuity.

The director that resigned, also did it to protect the community. She said that there needs to be new people on the board. She is also helping a lot to get the quorum up.

It's only Sally that says she gets a free ride, since 2016. Never voted in by members. And quite frankly, many of the safety and cash flow issues are because of Sally "running the show". If she would be voted in by members then all is fair. If she is in the top three voted for then 2 years. Bottom two, then one year. Doesn't make the cut, then she can try again next year.

JanineR
(Tennessee)

Posts:190


09/10/2021 12:11 PM  
ideally
JanineR
(Tennessee)

Posts:190


09/10/2021 12:15 PM  
Posted By AugustinD on 09/10/2021 8:31 AM
JanineR,

I now think the following section of the nonprofit corporation act is thee controlling law that says that Sally's term at this point is one year (starting in 2020, right after the 2020 annual election):

Section 48-58-105 - Terms of directors generally
(a) The charter or bylaws must specify the terms of directors. Except for designated or appointed directors, the terms of directors may not exceed five (5) years. In the absence of any term specified in the charter or bylaws, the term of each director shall be one (1) year. Directors may be elected for successive terms.



If the board wants to shift gears and say they appointed Sally to fill a vacancy, then Bylaw C applies, and Sally again may serve only until the 2021 election (in a few weeks, and assuming a successor is elected).






Thank you Augustin.

That is another one to add to the notes.

I am trying to aim to get the email out Monday. politely.

It will likely get ignored, but at least I gave it a sincere shot.

If you think of anything else, please can you post.

AugustinD


Posts:1585


09/10/2021 12:21 PM  
Posted By JanineR on 09/10/2021 12:11 PM

With this monumental annual meeting coming up, the current procedure is that the highest 3 votes will get 2 year term and the 4th vote will get 1 year term. That will start the staggered system clean again.

My issue is that I believe that it should be the highest 3 votes will get 2 year terms and the 4th and 5th highest will get 1 year.
In your first post, you indicated the Bylaws say the term for elected directors is two years. Is what you said on the subject of the bylaw-prescribed terms for owner-elected directors not accurate?

Given the frequency of resignations from boards and the difficulty of getting the language of bylaws just right so as to preserve staggered terms amidst multiple board shake-ups over the years, I think staggered terms are a pipe dream. Where possible, Bylaws should be amended to omit them.
JanineR
(Tennessee)

Posts:190


09/10/2021 12:27 PM  
Posted By AugustinD on 09/10/2021 12:21 PM
Posted By JanineR on 09/10/2021 12:11 PM

With this monumental annual meeting coming up, the current procedure is that the highest 3 votes will get 2 year term and the 4th vote will get 1 year term. That will start the staggered system clean again.






This is not in the bylaws, that is just how it was written in the notice of meeting letter.
In essence, they are saying the fourth vote will serve out the remainder of the "two year" term of the director that resigned.
AugustinD


Posts:1585


09/10/2021 12:43 PM  
JanineR, here's my re-draft of a proposed email or certified letter to the board:

Dear Board of Directors,

Respectfully, I believe Director Sally's seat must be considered open for the purposes of the upcoming 2021 election. My reasoning follows.

A year ago at the 2020 annual meeting, the Association failed to attain a quorum. At this point (right after the attempted, 2020 annual meeting), Sally either (1) resigned; or (2) chose to continue as a director, pursuant to the Tn Nonprofit Corporation Act section 48-58-105 (d). (Section 48-58-105 states, "Despite the expiration of a director's term, the director continues to serve until a successor is elected, designated or appointed and qualifies, or until there is a decrease in the number of directors.")

If Sally resigned, then pursuant to Bylaw C, the Board appears to have appointed Sally to fill the vacancy. Under the latter circumstances, Bylaw C states Sally's term is only until the next annual election. This is consistent with state statutes. That is, there is no conflict with state statutes.

If Sally did not resign, but instead, and pursuant to the Tn Nonprofit Corporation Act section 48-58-105 (d), Sally continued as a director, then first, the Bylaws are silent on how long Sally should serve. This is particularly clear given that, after the 2020 annual meeting Sally is only serving because the 2020 annual meeting failed to attain a quorum and because the Nonprofit Corporation Act says she continues. But in these circumstances the Nonprofit Corporation Act is not silent on how long Sally should serve. The Nonprofit Corporation Act at section 48-58-105 (a) states: "The charter or bylaws must specify the terms of directors. Except for designated or appointed directors, the terms of directors may not exceed five (5) years. In the absence of any term specified in the charter or bylaws, the term of each director shall be one (1) year. Directors may be elected for successive terms." (Bolded emphasis is mine.)

For the above reasons, I believe Sally's seat must be considered open for the purposes of the upcoming election.

Would you please consider consulting the COA attorney to confirm this?

Thank you,

name
address
email addie
phone number
AugustinD


Posts:1585


09/10/2021 12:47 PM  
Posted By JanineR on 09/10/2021 12:27 PM
This is not in the bylaws, that is just how it was written in the notice of meeting letter. In essence, they are saying the fourth vote will serve out the remainder of the "two year" term of the director that resigned.
It sounds to me like the Board is just making up stuff based on no interest in what the Bylaws say. In other words, the board is attempting to amend the Bylaws without following the procedures for doing so. Usually the owners have to vote on amendments.

The Bylaws say the term of elected directors is two years.

The Bylaws say nothing about staggered terms.

But maybe save this battle for another time. Deal with Sally first, as you say she is a problem and more importantly by any reasonable reading of the bylaws and statutes, her seat should be open for this election.
CathyA3
(Ohio)

Posts:2394


09/10/2021 1:00 PM  
Posted By AugustinD on 09/10/2021 12:21 PM
Posted By JanineR on 09/10/2021 12:11 PM

With this monumental annual meeting coming up, the current procedure is that the highest 3 votes will get 2 year term and the 4th vote will get 1 year term. That will start the staggered system clean again.

My issue is that I believe that it should be the highest 3 votes will get 2 year terms and the 4th and 5th highest will get 1 year.
In your first post, you indicated the Bylaws say the term for elected directors is two years. Is what you said on the subject of the bylaw-prescribed terms for owner-elected directors not accurate?

Given the frequency of resignations from boards and the difficulty of getting the language of bylaws just right so as to preserve staggered terms amidst multiple board shake-ups over the years, I think staggered terms are a pipe dream. Where possible, Bylaws should be amended to omit them.



I agree with Augustin that you should look into amending bylaws or whatever to make this simpler after you get the new board in place. It sounds like the current complexity isn't buying you anything - the negatives outweigh the positives. In general I believe that staggered terms are beneficial, but that's when you have something that's easy to maintain (eg. a 3-person board each of whom serves a 3-year term and appointed directors complete the entire term they're appointed to).

Just to un-confuse me about Sally:

* was she elected or appointed?
* if appointed, what is the rule in your association/state about how long appointed directors may serve?
* what was the length of Sally's current term and its expiration date?
(I'm assuming she did not resign.)

It sounds like there are good reasons to replace her, but you may have to do it the hard way (the other board members rein her in to limit the damage she can do, and with luck she's resign in a snit).

I agree that with terms of varying lengths, it's reasonable to put the folks who received the most votes into the longer terms. I know other posters here have said that they do it that way in their communities.
MaxB4


Posts:1211


09/10/2021 7:51 PM  
I'm sorry, this is a no-brainer. If you guys can't interpret this, I'm not sure if I would want you near the checkbook.
JanineR
(Tennessee)

Posts:190


09/24/2021 9:03 AM  
Posted By MaxB4 on 09/10/2021 7:51 PM
I'm sorry, this is a no-brainer. If you guys can't interpret this, I'm not sure if I would want you near the checkbook.



Sally is the closest to the checkbook
JanineR
(Tennessee)

Posts:190


09/24/2021 9:03 AM  
I sent a short polite email to the management company, and copied the board.
I don’t usually copy the board, but there would have been no guarantee that the board would receive this issue from the MC otherwise.

I have not received any formal response. I did receive a private text from one of the directors that said my email was a fair question.
But as a whole, there is no response from the Board. They will likely either
a) Ignore it
b) “vote” to continue her term as two years. Which they can’t do, but they have a tendency to vote on thigs that are outside of their scope of authority.
c) Kick it to the next board if there is a quorum
So the follow up question is how would the next board handle this?
There could potentially be a next board by Tuesday evening.
Eight people have volunteered, including myself, for “four” vacancies which should have been five.
I have been doing a running tab of who has sent in proxies, and it seems that the association is very likely to have a quorum.

What are some suggestions to make this fair?
On one hand, due to bad advice, the board didn’t know that Sally had to run, had Sally known she would have.
On the other hand, four other people did run. And the person that had the 5th amount of votes could have been fairly on the board on Tuesday if not for this mistake.

AugustinD


Posts:1585


09/24/2021 11:56 AM  
Posted By JanineR on 09/24/2021 9:03 AM
I sent a short polite email to the management company, and copied the board.
I don’t usually copy the board, but there would have been no guarantee that the board would receive this issue from the MC otherwise.

I have not received any formal response. I did receive a private text from one of the directors that said my email was a fair question.
But as a whole, there is no response from the Board. They will likely either
a) Ignore it
b) “vote” to continue her term as two years. Which they can’t do, but they have a tendency to vote on thigs that are outside of their scope of authority.
c) Kick it to the next board if there is a quorum
So the follow up question is how would the next board handle this?
There could potentially be a next board by Tuesday evening.
Eight people have volunteered, including myself, for “four” vacancies which should have been five.
I have been doing a running tab of who has sent in proxies, and it seems that the association is very likely to have a quorum.

What are some suggestions to make this fair?
On one hand, due to bad advice, the board didn’t know that Sally had to run, had Sally known she would have.
On the other hand, four other people did run. And the person that had the 5th amount of votes could have been fairly on the board on Tuesday if not for this mistake.

If your group wins a board majority, either retain the advice of counsel on this, or employ CathyA3's recommendation as follows:
Posted By CathyA3 on 09/10/2021 1:00 PM

It sounds like there are good reasons to replace her, but you may have to do it the hard way (the other board members rein her in to limit the damage she can do, and with luck she's resign in a snit).
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