Filling Vacant Seats
Adams Stirling PLC


It is not uncommon for a director to vacate his/her seat prior to the end of their term. A heavy workload at the office, family issues, health problems, etc. could create vacancies on boards.

Less Than a Quorum. If there is more than one vacant seat such that the remaining directors are less than a quorum, the remaining directors cannot conduct any business except to appoint other directors to the board. (Corp. Code §7224(a).)

Recalls. If the vacancy occurred because the membership called a special meeting and removed the director, the board cannot fill the vacancy. Despite anything to the contrary in their governing documents, only the membership can fill a seat created by a recall

Pending Annual Meeting. When a seat becomes vacant, boards must make a decision. If the vacancy occurs too close to the next annual meeting, the board might decide to leave the seat empty and let the membership fill it.

Bylaws & Corp Code. If the vacancy occurs shortly after an annual meeting and the board decides not to appoint a replacement, look to your bylaws--they might require an election. If the bylaws are silent and the board fails/refuses to fill the seat, the membership may call for a special election. (Corp. Code §7224(b).) The process is initiated by filing a petition with the board.

Open Meeting. The discussion and vote by the board to fill or not fill a seat should take place in open session. Voting on this issue does not fall into any of the approved categories for an executive session.

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Adams Stirling PLC