Filling board vacancies

Why the seat opened decides who fills it

A board seat can open two different ways, and the way it opened commonly changes who has the authority to fill it. A director who resigns leaves quietly; no membership vote was needed to open the seat, so the board commonly fills it by its own vote. A director who is removed had the seat taken away by a membership vote, so filling that seat commonly returns to the membership too. Some bylaws let the board fill a removal vacancy as well. Check yours.

One state's statute shows how far apart these two paths can be. California lets the board fill a resignation vacancy by "approval of a majority of a quorum of the board," unless the governing documents say otherwise, but sends a removal vacancy to the membership instead:

"Such vacancies may be filled only by approval of the members."

Source: Filling Vacancies on the Board, FindHOALaw, Tinnelly Law Group

That is California's rule, not a universal one. Your state's nonprofit corporation statute and your own bylaws set the actual thresholds. Look them up before you act.

Robert's Rules' default, when your bylaws are silent

If your bylaws adopt Robert's Rules of Order as their parliamentary authority and are silent on vacancies, its default answer is the same for any vacancy, officer or director:

"The power to appoint or elect is the power to accept a resignation and fill a vacancy. The authority to fill a vacancy can be extended to a subordinate body only by an act of the superior body."

Source: Official Interpretations, Robert's Rules Association

In practice, that means the board can fill a vacancy between meetings only if the bylaws hand the board that authority, and only if the membership has not reserved the right to elect itself. Even then, the board cannot make a decision that conflicts with one the membership already made, and the membership keeps the right to hold its own election at the next meeting.

Before you fill a seat, check four things

• Why did the seat open? Resignation and removal are commonly treated differently.
• What do your bylaws say about vacancies? A bylaws provision controls over any general default.
• What does your state's nonprofit corporation or HOA statute say? It sets the outer boundary the bylaws cannot cross.
• Has your board adopted a parliamentary authority such as Robert's Rules? If not, its default does not apply to you at all.

Whichever way the seat opened, one thing does not change: an officer vacancy and a director vacancy are not the same question, and mixing them up is the most common mistake a board makes when a seat opens unexpectedly.