Board vacancies cause confusion in upcoming election
By David M. Bendoff
Q: I was recently elected to the seven-person board of my community association. The bylaws state that at the first annual meeting of the association two people are to be elected for a 1-year term, two people are elected for a 2-year term and three people are elected for a 3-year term. The bylaws go on to state that members will serve a 3-year term for all future elections after the first annual meeting.
Over the years, we have had board members resign leaving vacancies, or we have had issues with finding candidates to run for the board. As a result, it appears that four of the seven board positions are up for reelection for a 3-year term at the upcoming annual meeting. The property manager says this can't be correct, and the proper staggering of board terms needs to be re-established. The bylaws don't expressly mention anything about staggering elections beyond the first one. I do not see why the board terms should be staggered or why the property manager is pushing the board in that direction, am I missing something?
A: The situation here comes up from time to time in associations. The property manager is absolutely correct here. Staggered board terms were the product of the election of the first board at the first annual meeting, and having board members elected for 3-year terms thereafter. As a result, either two or three board members are elected at each annual meeting for a 3-year term. Note that 3-year board terms are permitted for a common interest community association.
Therefore, four board members should not be up for election for a 3-year term at the upcoming annual meeting. The staggering does need to be re-established, and that would require electing different board seats for different terms at the upcoming annual meeting. This is typically accomplished by having the people receiving the higher number of votes serving for a longer term than the people receiving fewer of the votes. I don't have enough information to comment as to what number of board seats should be elected for what term.
Q: The bylaws for our common interest community association state that if a board member resigns, a new person can be appointed by the board to fill the vacancy for the remainder of the original board member's term. I understand the law changed after the bylaws were written and that an appointed person can now only serve until the next annual meeting. What happens then if there is time remaining on the term of the person who resigned?
A: The Illinois Common Interest Community Association Act addresses the filling of vacancies on the board. Section 1-25(e) provides that "(i)f there is a vacancy on the board, the remaining members of the board may fill the vacancy by a two-thirds vote of the remaining board members until the next annual meeting of the membership." If, at the next annual meeting, there is time remaining on the term of the board member who resigned, the members of the association would vote to fill the vacancy for the balance of the term of the board member who resigned.
Do note that if the board fills the vacancy, "members holding 20% of the votes of the association can request a meeting of the members to fill the vacancy for the balance of the term." If such a request is received, a meeting of the members must be called for purposes of filling a vacancy on the board no later than 30 days following the filing of the petition with the board.
• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.