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Subject: Staggered terms for board members
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HenryS7
(Arizona)

Posts:73


11/17/2021 1:55 PM  
Our by-laws say that the board members serve 2 year terms and the expiration of the terms should be staggered. I.e., we have 5 members and 2 members should expire on certain years and 3 members should expire on the other three.

As it turns out, due to COVID and other reasons, we elected a complete slate of new directors for the first time last spring. All five will serve 2 year terms per the by-laws, so it appears to me that we will not have elections in 2022, and then we will have elections again in 2023, 2025, 2027. That is not what our by-laws want.

How do we rectify this problem? We have one or two board members who are wanting to step down, and our by-laws say that if the board chooses to fill a vacant position, they can appoint someone to the role and then the new board member will finish the term.

So, if we decide to hold an election at our next annual meeting, we would be violating the by-laws since the terms are all two year terms. But if we only have elections when the terms are complete, we are also violating by-laws because the terms are supposed to be staggered.

How do we get compliant with our by-laws?
JohnC46
(South Carolina)

Posts:11659


11/17/2021 2:04 PM  
Henry
I am somewhat confused. An election should be held every year. 3 vacancies one year, two vacancies the next year and so forth.

If like us, 5 member BOD, two year terms and staggered as above, no Annual Meeting for two years, thus all terms are up. At our next Annual Meeting we will hold an election for all 5 BOD Member spots. The highest 3 vote getters will serve 2 year terms, the lowest 2 vote getters will serve one year terms. This puts us back on the cycle.
HenryS7
(Arizona)

Posts:73


11/17/2021 2:29 PM  
Five board members were elected for the first time in 2021. They serve 2 year terms per the by-laws.

Next annual meeting is 2022. We can't have elections in 2022 because no board members term is up.

However, by-laws say that terms should be staggered, so 2 or 3 positions are up for election every year.

Not sure how we create staggered terms while honoring that all five members have 2 year terms.
MaxB4
(California)

Posts:1594


11/17/2021 2:47 PM  
Go back to the last election and the two directors with the lowest number of votes have a one year term, and are up for re-election this year for a two year term.
CathyA3
(Ohio)

Posts:2588


11/17/2021 2:59 PM  
The five new directors may not be all serving two year terms. I think the controlling factor would be the length of the terms that they filled - I'm assuming here that not all of those open positions expired at the same time but that some were vacant due to resignations.

So if you had, for example, three terms that were expiring but two others just happened to be vacant due to resignations but still had a year to run, then two of your new board members will be up for election next year.

If your bylaws truly require all newly elected directors to serve two year terms, then they don't account for the exact situation you're describing - the bylaws are not internally consistent. If you don't want to amend them to correct this, then you'll need to decide which is the higher priority: the length of the terms or the staggering.

My personal opinion is that the staggered terms provide a benefit to the association - they preserve institutional memory and generally prevent having a board made up entirely of newbies. In contrast, board members aren't "entitled" to serve any particular length of time since they serve at the pleasure of the homeowners and can be removed with or without cause. In other words, board service isn't a right, so nobody is being hard done by if they only serve a single year after election - they would only serve a year if they were appointed after someone resigned after one year on the board.

MaxB4
(California)

Posts:1594


11/17/2021 3:20 PM  
Seriously, why is this so difficult?
HenryS7
(Arizona)

Posts:73


11/17/2021 3:32 PM  
Posted By MaxB4 on 11/17/2021 2:47 PM
Go back to the last election and the two directors with the lowest number of votes have a one year term, and are up for re-election this year for a two year term.




That is not per our bylaws. If we did that, we'd just be making up rules.
HenryS7
(Arizona)

Posts:73


11/17/2021 3:35 PM  
Posted By CathyA3 on 11/17/2021 2:59 PM
The five new directors may not be all serving two year terms. I think the controlling factor would be the length of the terms that they filled - I'm assuming here that not all of those open positions expired at the same time but that some were vacant due to resignations.





We have no records of when each position terms starts and stops. I think it's a great idea for us to name the position (Boardmember "A", "B", "C", etc) and then have a document that says when each term starts and stops. When we have time in the future we might create that.

However, as of right now, nobody knows when a particular term starts and stops, so we are starting from scratch.

I think the best way is to hold an election in 2022 for each open position, even though that is not technically per the by-laws. Then those two year terms will be staggered with the terms of the people who did not vacate their position.
AugustinD


Posts:1902


11/17/2021 3:42 PM  
Posted By HenryS7 on 11/17/2021 1:55 PM
As it turns out, due to COVID and other reasons, we elected a complete slate of new directors for the first time last spring. [snip stuff about the bylaws calling for staggered terms]
First, of necessity, the HOA violated the bylaws because of the pandemic. HOAs like yours are doing the best they can to comply with the bylaws. Any fool suing for what happened is a fool.

Second, so things got out of whack. Your HOA is stuck with violating the bylaws (again) to get things back on track. I say the Board should vote on an approach that is "reasonable, fair, and in the best interests of the HOA," such that it recovers the staggering of terms. Would anyone be willing to serve just a year? Anyone suing for a reasonable vote by the board to run elections to get things back on track, staggered-term wise, is a fool.
MaxB4
(California)

Posts:1594


11/17/2021 3:43 PM  
Henry

Please read your first sentence on your first post, it says Our by-laws say that the board members serve 2 year terms and the expiration of the terms should be staggered. I.e., we have 5 members and 2 members should expire on certain years and 3 members should expire on the other three.

Put on your thinking cap, how do you get to staggered terms from the election held last year? If you elected 5 new members, on a 5 person board, each with two year terms, you f'ed the process up.
AugustinD


Posts:1902


11/17/2021 3:43 PM  
Posted By HenryS7 on 11/17/2021 3:35 PM

I think the best way is to hold an election in 2022 for each open position, even though that is not technically per the by-laws. Then those two year terms will be staggered with the terms of the people who did not vacate their position.
I think the above solution is also reasonable, fair and in the best interests of the HOA.
HenryS7
(Arizona)

Posts:73


11/17/2021 3:48 PM  
Posted By MaxB4 on 11/17/2021 3:43 PM
Henry

Please read your first sentence on your first post, it says Our by-laws say that the board members serve 2 year terms and the expiration of the terms should be staggered. I.e., we have 5 members and 2 members should expire on certain years and 3 members should expire on the other three.

Put on your thinking cap, how do you get to staggered terms from the election held last year? If you elected 5 new members, on a 5 person board, each with two year terms, you f'ed the process up.




Yup. I wasn't the President at the time, and the president didn't really care about following the by-laws. That president made up a lot of rules on how to run things, and I am slowly discovering that the made up rules that we lived by were not per the documents that govern our association.

In all honesty, I don't think that we have done things per the by-laws for about a decade, and I am slowly trying to help our community do things better in the future.
MaxB4
(California)

Posts:1594


11/17/2021 3:49 PM  
Posted By AugustinD on 11/17/2021 3:43 PM
Posted By HenryS7 on 11/17/2021 3:35 PM

I think the best way is to hold an election in 2022 for each open position, even though that is not technically per the by-laws. Then those two year terms will be staggered with the terms of the people who did not vacate their position.
I think the above solution is also reasonable, fair and in the best interests of the HOA.



They held an election for 5 new board members on a 5 person board for two year terms. Where are the vacancies?
AugustinD


Posts:1902


11/17/2021 3:53 PM  
Posted By MaxB4 on 11/17/2021 3:49 PM
Posted By AugustinD on 11/17/2021 3:43 PM
Posted By HenryS7 on 11/17/2021 3:35 PM

I think the best way is to hold an election in 2022 for each open position, even though that is not technically per the by-laws. Then those two year terms will be staggered with the terms of the people who did not vacate their position.
I think the above solution is also reasonable, fair and in the best interests of the HOA.



They held an election for 5 new board members on a 5 person board for two year terms. Where are the vacancies?
Look in the first post:
Posted By HenryS7 on 11/17/2021 1:55 PM

How do we rectify this problem? We have one or two board members who are wanting to step down,
MaxB4
(California)

Posts:1594


11/17/2021 3:53 PM  
Henry

When your association was brand new and they elected a new homeowner board, what was the procedure for getting to staggered terms. I know how it's done, but you will need to do some research. You're the president, put your big boy pants on and solve the issue.
HenryS7
(Arizona)

Posts:73


11/17/2021 4:27 PM  
Posted By MaxB4 on 11/17/2021 3:53 PM
Henry

When your association was brand new and they elected a new homeowner board, what was the procedure for getting to staggered terms. I know how it's done, but you will need to do some research. You're the president, put your big boy pants on and solve the issue.




It's complicated reading the by-laws because they talk about the developer member, but it sounds like that of the five board members, 2 would volunteer for 1 year terms and the remaining 3 would volunteer for two year terms. Thereafter, all terms were two years.

BobS38
(Oregon)

Posts:57


11/17/2021 4:38 PM  
Posted By HenryS7 on 11/17/2021 1:55 PM


How do we get compliant with our by-laws?




I've been wondering the same thing with ours. 5 Board members, 2 year terms, staggered.

COVID situation through a wrench in it all. We haven't had a annual meeting an election since Spring 2019. We are finally holding our Annual Meeting this weekend and all board seats are up for election.

How are we supposed to clean up and get back into schedule of staggered terms?
BenA2
(Texas)

Posts:1104


11/17/2021 4:46 PM  
We keep them staggered. If a board member resigns before their term is up, e.g. their term expires in 2023 but they resign before the election in 2022, the person running for their position will only serve one year and will have to run again in 2023.
BenA2
(Texas)

Posts:1104


11/17/2021 4:52 PM  
Make two positions expire in 2023 (assuming the election is in 2022). Ask two of the candidates to run for those positions. They will only serve one year but the positions are still two-year terms (21-23) so you are still in compliance with the bylaws.
AugustinD


Posts:1902


11/17/2021 4:53 PM  
Posted By BobS38 on 11/17/2021 4:38 PM
How are we supposed to clean up and get back into schedule of staggered terms?
You're looking for a rational solution based in the bylaws and state stature where there is none. Hence all the Board can do to avoid being sued (in the extreme case) is choose a plan that in its opinion is the most fair, reasonable and in the best interests of the HOA to get back on track.
TimB4
(Tennessee)

Posts:17841


11/17/2021 5:11 PM  
Henry,

What terms were the other directors serving prior to covid?


Lets Say the following in 2019:

Dir A elected in 2018 into a 3 year term. Seat up for election in 2021
Dir B elected in 2019 into a 3 year term. Seat up for election in 2022
Dir C elected in 2019 into a 2 year term. Seat up for election in 2021
Dir D elected in 2018 into a 2 year term. Seat up for election in 2020


In 2021:

Dir A seat is up for election to a new 3 year term

Dir B has 1 year left (anyone elected in 2021 to this seat would only serve one year - the remainder of the Dir B term)

Dir C seat is up for a new 2 year election

Dir D seat was up for election in 2020 for a 2 year term. However, due to covid, elections were postponed and Dir D continued and served 1 more year into the new 2 year term. Hence, anyone elected to this seat would only serve the remaining year of the existing 2 year term.
KerryL1
(California)

Posts:8720


11/17/2021 5:14 PM  
Our Bylaws call for staggered terms too ( 2 year terms; board of 7). Several years ago, it got out of whack because our Bylaws also say that appointees to fill vacancies served until the next annual meeting. We has some resignations. The election, then had to fill 6 vacancies. We certainly would not have been able to keep staggered terms.

Our HOA attorney opined that to keep in mind the best the best interests of our HOA, maintaining staggered terms so that there always are 3 experienced board members to serve the community was the right procedure. He advised exactly what John suggests in the first response to Henry. At the next election, if 5 vacancies, the top 3 vote getters would serve 2 years and the next two would serve one year.



MaxB4
(California)

Posts:1594


11/17/2021 6:17 PM  
Posted By TimB4 on 11/17/2021 5:11 PM
Henry,

What terms were the other directors serving prior to covid?


Lets Say the following in 2019:

Dir A elected in 2018 into a 3 year term. Seat up for election in 2021
Dir B elected in 2019 into a 3 year term. Seat up for election in 2022
Dir C elected in 2019 into a 2 year term. Seat up for election in 2021
Dir D elected in 2018 into a 2 year term. Seat up for election in 2020


In 2021:

Dir A seat is up for election to a new 3 year term

Dir B has 1 year left (anyone elected in 2021 to this seat would only serve one year - the remainder of the Dir B term)

Dir C seat is up for a new 2 year election

Dir D seat was up for election in 2020 for a 2 year term. However, due to covid, elections were postponed and Dir D continued and served 1 more year into the new 2 year term. Hence, anyone elected to this seat would only serve the remaining year of the existing 2 year term.



His BYlaws state Directors serve two year terns, not three.
PatJ1
(North Carolina)

Posts:290


11/18/2021 1:35 AM  
The terms are 2 years. Not that everyone serves for 2 years. I understand it that the election would fill the remaining terms of the vacated positions and elect to fill the open 2 year terms.

If there is 1 year left in a 2 year term, the elected would serve for 1 year. They run to fulfill the balance of the term.

Same if they were appointed. They are appointed to fulfill the balance of the term until the next election.

Board members are volunteers. Many have no idea what they're doing. Educate them. Don't beat them up.
HenryS6
(Arizona)

Posts:111


11/18/2021 2:15 AM  
Posted By PatJ1 on 11/18/2021 1:35 AM
The terms are 2 years. Not that everyone serves for 2 years. I understand it that the election would fill the remaining terms of the vacated positions and elect to fill the open 2 year terms.

If there is 1 year left in a 2 year term, the elected would serve for 1 year. They run to fulfill the balance of the term.

Same if they were appointed. They are appointed to fulfill the balance of the term until the next election.




The bylaws state that if a board member resigns, the remaining board members appoint (not hold an election) a new board member and that newly appointed board member serves for the remainder of the term of the board member.

I think we will have an election and the newly elected board members will start their 2 year terms in 2022.

Honestly, this is all a mess to keep track of...no wonder no one did it previously.
SheliaH
(Indiana)

Posts:4284


11/18/2021 4:57 AM  
This would be a good thing to discuss at the annual meeting and see what the homeowners would prefer. If you have two people who want to step down anyway, ask them to wait until next year, so homeowners can elect their replacements and the staggered schedule can restart At that point. The remaining three will run in 2023 and the newbies in 2024.


ND
(PA)

Posts:637


11/18/2021 6:32 AM  
Henry, isn't it you that's doing all the work on your HOA Board and none of your fellow Board Members want to help out and also complain of receiving too many emails from you?

If so, and if you have one or two Board Members who want to step down, then now (or at your next annual meeting or whenever Board Member voting takes place) is an opportune time to simultaneously allow them to step down, elect new members, and reorient the staggered terms.

Do what others suggest and come up with a reasonable plan to get back on track with properly-staggered terms. There's no definitive solution to your issue that anyone here can hand off to you for easy implementation.

Bottom line is that your docs were violated a while ago and resulted in your current situation. You need to again violate your docs to get back on track. And if you "violate" them in a manner that is reasonable, explainable, and with logic, then that's the best solution.
HenryS6
(Arizona)

Posts:111


11/18/2021 6:37 AM  
Posted By ND on 11/18/2021 6:32 AM
Henry, isn't it you that's doing all the work on your HOA Board and none of your fellow Board Members want to help out and also complain of receiving too many emails from you?




Yes, that is me. I don't mind doing the work, but I do mind the complaints about excessive e-mails. I just got one that asked for no more than 1 e-mail between each board meeting. This is just not a practical request.

I agree that if the board members don't have time to be active board members, it's fair for them to step down and allow others who do have the time and energy to step up to the plate.
JohnC46
(South Carolina)

Posts:11659


11/18/2021 9:33 AM  
Covid did throw some things in HOA's out of whack, especially Annual Meetings and BOD Elections. As long as a BOD was open, honest, and tried their best to accommodate the situation, I doubt any jury would find them negligent. Some BOD's will have to violate their own Bylaws, or make some up for temporary use, to get things back on track especially staggered BOD terms. I say do it.
MaxB4
(California)

Posts:1594


11/18/2021 9:38 AM  
If you can't keep track of the terms of only five directors, I'm not sure I want you keeping track of association money.
BobS38
(Oregon)

Posts:57


11/18/2021 10:58 AM  
Posted By MaxB4 on 11/18/2021 9:38 AM
If you can't keep track of the terms of only five directors, I'm not sure I want you keeping track of association money.




agreed....but we all know the typical situation where an HOA board is secretive, won't share information, circles the wagons when homeowners start asking about the terms, meetings, etc.

Likewise in my situation, the current board (that's been there for 2.5 years and no annual meeting since spring 2019), refused to share any details, refused to open up board meetings to the membership, refused to hold zoom meetings, refused to hold annual meetings, etc.
MaxB4
(California)

Posts:1594


11/18/2021 11:55 AM  
First, I know of no state laws that outline how a board is elected after tranistion from a developer, nor when people don't keep track of their directors if they are serving multiple years and with staggered terms. Someone needs to keep track of board members and their term and that usually falls into the hands of the officer responsible for maintaining the records, which would be the Secreatry.

I have had to get boards back on track after taking on new associations. It's not rocket science, and it sure ain't violating any Bylaws or state laws. In Henery's case, the bigger concern is that he just had an election maybe six months ago and he has one or two wanting to resign. He needs to fix the problem from six months ago now. If he has two wanting to resign, let them. Appoint two new ones, if you can find anyone, and let them serve until spring 2022, at which time you have an election filling two seats for a two year term.
TimB4
(Tennessee)

Posts:17841


11/18/2021 1:42 PM  
Posted By MaxB4 on 11/17/2021 6:17 PM
Posted By TimB4 on 11/17/2021 5:11 PM
Henry,

What terms were the other directors serving prior to covid?


Lets Say the following in 2019:

Dir A elected in 2018 into a 3 year term. Seat up for election in 2021
Dir B elected in 2019 into a 3 year term. Seat up for election in 2022
Dir C elected in 2019 into a 2 year term. Seat up for election in 2021
Dir D elected in 2018 into a 2 year term. Seat up for election in 2020


In 2021:

Dir A seat is up for election to a new 3 year term

Dir B has 1 year left (anyone elected in 2021 to this seat would only serve one year - the remainder of the Dir B term)

Dir C seat is up for a new 2 year election

Dir D seat was up for election in 2020 for a 2 year term. However, due to covid, elections were postponed and Dir D continued and served 1 more year into the new 2 year term. Hence, anyone elected to this seat would only serve the remaining year of the existing 2 year term.



His BYlaws state Directors serve two year terns, not three.





It also states 5 directors and not 4.
My post is designed to demonstrate what should happen.
The OP should substitute as required by his documents.
JohnC46
(South Carolina)

Posts:11659


11/18/2021 2:04 PM  
I admit I am getting confused by all this. Maybe I need a drink.......LOL

We have a BOD of 5 with staggered terms. We have an election every year for two year terms. There will be 3 vacancies one year, two vacancies the next year, and so on.

When someone is appointed to the BOD to fill a vacancy, they serve the remainder of the term they are appointed to fill. Granted we have never had two vacancies to fill so the question of who fills each has never arisen.

We have kept the same BOD for three years now (with the exception of one appointee) as we have cancelled our Annual Meeting due to Covid 19. We kept our owners fully aware and we had no ankle biters. This coming Annual Meeting we will elect a BOD of five. The top 3 vote getters will serve a two year term. The next two vote getters will serve for one year. We will then be back on our staggered rotation.

In several cases, we never bothered to appoint anyone (especially if an election was coming up) as we know our BOD can easily run with only three but that is another subject.

Going to make myself a drink. Perfect Roy Roy, rocks, lemon twist.....sip....sip...
MaxB4
(California)

Posts:1594


11/18/2021 2:19 PM  
Posted By TimB4 on 11/18/2021 1:42 PM
Posted By MaxB4 on 11/17/2021 6:17 PM
Posted By TimB4 on 11/17/2021 5:11 PM
Henry,

What terms were the other directors serving prior to covid?


Lets Say the following in 2019:

Dir A elected in 2018 into a 3 year term. Seat up for election in 2021
Dir B elected in 2019 into a 3 year term. Seat up for election in 2022
Dir C elected in 2019 into a 2 year term. Seat up for election in 2021
Dir D elected in 2018 into a 2 year term. Seat up for election in 2020


In 2021:

Dir A seat is up for election to a new 3 year term

Dir B has 1 year left (anyone elected in 2021 to this seat would only serve one year - the remainder of the Dir B term)

Dir C seat is up for a new 2 year election

Dir D seat was up for election in 2020 for a 2 year term. However, due to covid, elections were postponed and Dir D continued and served 1 more year into the new 2 year term. Hence, anyone elected to this seat would only serve the remaining year of the existing 2 year term.



His BYlaws state Directors serve two year terns, not three.





It also states 5 directors and not 4.
My post is designed to demonstrate what should happen.
The OP should substitute as required by his documents.



I am more confused
TimB4
(Tennessee)

Posts:17841


11/18/2021 2:21 PM  
Posted By MaxB4 on 11/18/2021 2:19 PM

I am more confused




Of course you are.

Hopefully, the OP isn't.
If the OP is confused, I'd be happy to try and explain it to them differently.
MaxB4
(California)

Posts:1594


11/18/2021 2:23 PM  
I think it's time for that drink
MaxB4
(California)

Posts:1594


11/18/2021 2:28 PM  
Posted By TimB4 on 11/18/2021 2:21 PM
Posted By MaxB4 on 11/18/2021 2:19 PM

I am more confused




Of course you are.

Hopefully, the OP isn't.
If the OP is confused, I'd be happy to try and explain it to them differently.



The past means nothing right now. Henry's association elected five new board members in 2021, because of COVID and "other reasons". All were presumely elected to two year years, again , presumely, those are the terms spelled out in the Bylaws. Presumely their Bylaws also call for staggered terms. Based on his first post, what is the easiest method to get back on track?
KellyM3
(North Carolina)

Posts:1804


11/18/2021 7:15 PM  
Posted By HenryS7 on 11/17/2021 4:27 PM
Posted By MaxB4 on 11/17/2021 3:53 PM
Henry

When your association was brand new and they elected a new homeowner board, what was the procedure for getting to staggered terms. I know how it's done, but you will need to do some research. You're the president, put your big boy pants on and solve the issue.




It's complicated reading the by-laws because they talk about the developer member, but it sounds like that of the five board members, 2 would volunteer for 1 year terms and the remaining 3 would volunteer for two year terms. Thereafter, all terms were two years.





Do this. Have yourself and someone else run on a one-year term. Silence in by-laws allows from sensible maneuvering here. I've done a one year term in the past when some members vacated mid-term and no one filled their spot, leaving the diehards. No one is gonna sue the HOA for recalibrating the board of directors to align with your bylaws.
JohnC46
(South Carolina)

Posts:11659


11/19/2021 12:02 PM  
Posted By KellyM3 on 11/18/2021 7:15 PM
Posted By HenryS7 on 11/17/2021 4:27 PM
Posted By MaxB4 on 11/17/2021 3:53 PM
Henry

When your association was brand new and they elected a new homeowner board, what was the procedure for getting to staggered terms. I know how it's done, but you will need to do some research. You're the president, put your big boy pants on and solve the issue.




It's complicated reading the by-laws because they talk about the developer member, but it sounds like that of the five board members, 2 would volunteer for 1 year terms and the remaining 3 would volunteer for two year terms. Thereafter, all terms were two years.





Do this. Have yourself and someone else run on a one-year term. Silence in by-laws allows from sensible maneuvering here. I've done a one year term in the past when some members vacated mid-term and no one filled their spot, leaving the diehards. No one is gonna sue the HOA for recalibrating the board of directors to align with your bylaws.




I agree and if they did, I am confident they would lose.
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