WHAT HAPPENS IF TOO FEW PEOPLE RUN FOR THE BOARD?
Many times condominium associations find themselves with too few people to run for the available board positions. What do you do?
In 1995 the Florida legislature adopted the double envelope, secret ballot condominium board election system. While this law and its companion administrative rule are comprehensive, they still do not and cannot address all election issues. This article assumes that you already have a working knowledge of the condominium election procedures and only addresses the circumstance when too few people apply to run for the board.
For purposes of this e-Lawyer we will use the following fact pattern:
1. Our association has five (5) board members, whom we will identify as 'A', 'B', 'C', 'D' and 'E';
2. All board members serve one year terms, so all five (5) positions must be filled at the Association’s annual meeting to be held on February 29, 2004;
3. 'A', 'B' and 'C' have applied to again run for the board. No other persons have applied.
WHAT LAWS APPLY (boring, but work with me here):
This circumstance is not directly addressed in the condominium election laws, therefore, we must use other available laws to indirectly fashion a reasonable solution. Unfortunately these laws do not totally conform to each other (e.g. what is a 'vacancy' and what is an 'expiration'?), however, they do create general concepts that can be used to resolve most, if not all, election issues.
First, we first look to Chapter 617, Florida Statutes (Florida Not-For-Profit Corporate Act), and find the following relevant section:
617.0806 Staggered terms for directors.– Directors may be divided into classes and the terms of office of the several classes need not be uniform. Each director shall hold office for the term to which he or she is elected or appointed and until his or her successor has been elected or appointed and qualified or until his or her earlier resignation, removal from office, or death.
Next, we look to Section 718.112(2)(d) and Rule 61B - 23.0021 and find the following relevant language:
718.112 Bylaws. –
(2) Required Provisions.– The bylaws shall provide for the following and, if they do not do so, shall be deemed to include the following:
(d) Unit owner meetings. –
1. There shall be an annual meeting of the unit owners. Unless the bylaws provide otherwise, a vacancy on the board caused by the expiration of a director’s term shall be filled by electing a new board member, and the election shall be by secret ballot; however, if the number of vacancies equals or exceeds the number of candidates, no election is required....
3. The members of the board shall be elected by written ballot or voting machine.....Notwithstanding the provisions of this subparagraph, an election is not required unless more candidates file notices of intent to run or are nominated than board vacancies exist.
8. Unless otherwise provided in the bylaws, any vacancy occurring on the board before the expiration of a term may be filled by the affirmative vote of the majority of the remaining directors, even if the remaining directors constitute less than a quorum, or by the sole remaining director. In the alternative, a board may hold an election to fill the vacancy, in which case the election procedures must conform to the requirements of subparagraph 3. unless the association has opted out of the statutory election process, in which case the bylaws of the association control. Unless otherwise provided in the bylaws, a board member appointed or elected under this section shall fill the vacancy for the unexpired term of the seat being filled. Filling vacancies created by recall is governed by paragraph (j) and rules adopted by the division.
61B - 23.0021 Regular Elections; Vacancies Caused by Expiration of Term, Resignations, Death.
(d) Balloting is not necessary to fill any vacancy unless there are two or more eligible candidates for that vacancy. In such a case, not later than the date of the scheduled election:
1. For a regular election the association shall call and hold a meeting of the membership to announce the names of the new board members, or shall notify the unit owners of the names of the new board members or that one or more board positions remain unfilled, as appropriate under the circumstances. In the alternative, the announcement may be made at the annual meeting.
2. For an election pursuant to Section 718.112(2)(d)8., Florida Statutes, to fill a vacancy, the association shall call and hold a meeting of the membership to announce the names of the new board members or, in the alternative, shall notify the unit owners of the names of the new board members or that one or more board positions remain unfilled, as appropriate under the circumstances.
TWO IMPORTANT LEGAL PRINCIPLES:
From the above, the following two important legal principles are derived:
1. The terms of the board members will not expire until their successors have been elected. Therefore, unlike Cinderella, none of the existing board members automatically lose their position as a board member at the strike of midnight on the day of the election; and
2. An election is not required unless there are more candidates than vacancies.
APPLYING THOSE PRINCIPLES TO OUR FACT PATTERN:
Applying the above principles to our fact pattern, the following will be the situation at the end of the annual meeting held on February 29, 2004:
1. No election will have occurred. Instead, you will have notified all owners that 'A', 'B' and 'C' will serve as three of the board members and that the other two positions remained unfilled; and
2. Because no one was elected to take 'D' and 'E’s' positions, they remain on the board until such time as they resign, die or are properly replaced by new election.
WHAT DO YOU DO NEXT:
At this point, the board has the following options based on what they feel is in the best interests of the Association:
1. If both 'D' and 'E' agree to remain on the board, then they may be permitted to remain until the next election in February, 2005;
2. If either or both 'D' and 'E' do not wish to remain on the board, they will submit written resignations and the remaining board members will appoint their replacements, unless the Bylaws prohibit such action; or
3. Notwithstanding the wishes of 'D' and 'E', the board can start over and commence a new election process.
WHAT CAN YOU DO TO PREVENT THESE COMPLICATIONS:
Because the above conclusions do not come directly from existing laws, it is recommended that condominium associations carefully monitor the pre-election process in an attempt to insure that at least the minimum number of candidates timely submit their notice to run for the board. Please remember that, while nominating committees are specifically prohibited, there is nothing that forbids members from encouraging other members to run for the board.
But what if people just don’t want to serve? Here it is recommended that you invite such persons to submit their notice with the understanding that they can and will resign soon after they become a board member. By doing this, the law clearly and directly permits the willing and remaining board members to appoint replacement members until the next election.
The firm of Taylor & Carls, P.A., with offices located in Maitland, Melbourne and Daytona Beach, Florida, was founded in 1981 and has practiced in the area of community association law since that date. This edition prepared by Robert L. Taylor, a partner of Taylor & Carls, P.A. The information contained in The Association e-Lawyer should not be acted upon without professional legal advice.
©2004 Taylor & Carls, P.A. All Rights Reserved.
The firm can be reached at 407-660-1040.