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FILLING VACANT SEATS - APPOINTING DIRECTORS

It is not uncommon for a director to vacate his/her seat before the end of their term. A heavy workload at the office, family issues, health problems, or they sell their unit and cease to be qualified to serve on the board makes it difficult to remain on the board. If there is more than one vacancy such that the remaining directors are less than a quorum, the board cannot conduct any business except to appoint other directors to the board until they have enough to make quorum, . (Corp. Code § 7224(a).)

Vacancy Created by a Recall


If a vacancy is due to the membership's removal of one or more directors via a recall election, the board cannot fill the vacancies--only the membership can fill the seat(s) using an election. (Corp. Code § 7224(a).) Directors so elected shall serve the remaining terms of the directors they replaced. 

Vacancy Created by Other Factors


Director Resignation. A director may resign at any time by submitting their resignation.

Declaring a Seat Vacant. Sometimes, a board can remove a director by declaring their seat vacated because the person is no longer qualified to hold the seat. For example, the person sold their unit. One of the requirements for holding office is to be an owner of a unit in the association. 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 the person from the board. 

Appoint a Replacement. Unless otherwise provided in the bylaws and except for a vacancy created by the removal of a director, vacancies on the board may be filled by the approval of a majority of the remaining directors 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. If done correctly, a resigning director can vote on the appointment of their replacement.

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

Candidates and Term of Office


While interviewing candidates may be done privately, a director's appointment should be done in open session. Voting to fill a vacancy does not fall into any of the approved categories for executive session. The vote to fill an empty seat must be on the meeting's agenda.

Term of Office. The appointed director's term of office shall be as provided for in the bylaws

Shifting Directors. Unless the governing documents provide otherwise, boards can appoint an existing director to fill the longer term of a resigning director. 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 remains in office 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, treasurer), only the seat of the resigning director. For example, the resigning director is the president with 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 assume the office of president, it must additionally appoint the director to that office.

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Adams Stirling PLC