Appointing Directors

Vacancy Created by a Recall. If a vacancy results from the membership’s removal of one or more directors through a recall election, the board cannot fill the vacancy; only the membership can fill the seat(s) through an election. (Corp. Code § 7224(a)) Directors so elected shall serve the remaining terms of the directors they replaced. 

Declaring a Seat Vacant. Sometimes, a board can remove a director by declaring the director’s seat vacant because the person is no longer qualified to hold it. For example, if a director ceases to be an owner, the board can vacate the person’s seat. (Civil Code § 5105(f)) Another example is where the bylaws require a director to attend meetings. If the person misses a specified number of meetings, the board can remove them. 

Appoint a Replacement. Unless otherwise provided in the bylaws, and except for a vacancy created by the removal of a director, a majority of the remaining directors may fill vacancies on the board. (Corp. Code § 7224(a)) This general principle is also described in Robert’s Rules of Order: “The power to appoint or elect persons to any office or board carries with it the power to accept their resignations, and also the power to fill any vacancy occurring in it, unless the bylaws expressly provide otherwise.” (RONR (12th ed.) 47:57) If the vacancy occurs close to an annual meeting, the board might decide to leave the seat empty and let the membership fill it.

Vote by Resigning Director. A resigning director controls the date and time of his/her departure from the board. Resigning directors may set the effective dates and times of their resignations. (Corp. Code § 7224(c)) Directors remain in office and continue to serve as directors until their resignations take effect. They may also participate in appointing their replacement. Doing so helps avoid deadlocked boards. The resigning director may participate in selecting their replacement, provided the selection occurs before the resignation takes effect. (Mayo v. Interment Properties)

Failure to Appoint a Replacement. If the board fails or refuses to fill a vacant position, the membership may petition the board for a special membership meeting to fill the seat. (Corp. Code § 7224(b))

Term of Office

While candidate interviews may be conducted privately, there is disagreement over whether the vote to fill a vacancy is a personnel issue that can be done in executive session or must be voted on in an open session of the board. Unless the governing documents provide otherwise, boards may appoint an existing director to fill the remainder of a resigning director's term. For example, a person elected to a 2-year term on the board resigns three months into the term, and an existing director with less than a year remaining in their term is appointed to fill the seat; the appointed director serves for the remainder of the resigning director’s 2-year term. The appointed director does not assume the office of the resigning director (president, secretary, or treasurer), only the seat. For example, the resigning director is the president, who has a 2-year term. The person appointed to fill the director’s seat is appointed only to the seat, not the office. If the board wants the appointed director to also serve as president, it must appoint the director to that office.

Removing Directors

See “Removing Directors from the Board.”

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