QUESTION: If a board member resigns one full year before the end of her term, is her empty seat automatically open for election or does the board appoint her replacement?
RESPONSE: I know Clint Eastwood had trouble filling an empty chair three years ago but it’s fairly routine for boards of directors. The mechanism depends on two things: (i) how the vacancy was created and (ii) the language in your governing documents.
Recall. Vacancies caused by the membership’s removal of a director (a recall) cannot be filled by the board. It must be filled by the membership at a special election (Corp. Code §7224(a)). That should be done on the same ballot as the recall.
Death & Resignation. Vacancies created by death or resignation of a director are filled by approval of a majority of the remaining directors, unless the governing documents expressly provide otherwise. (Corp. Code §7224(a), Robert’s Rules, 11th ed., p. 467.) Most bylaws follow the Corporations Code and give the board the authority to fill the seat.
Failure to Appoint. If the board fails or refuses to fill an empty position, the membership can call for a special election. (Corp. Code §7224(b).) The process is initiated by filing a petition with the board for a special meeting to fill the seat.
RECOMMENDATION: Check your articles of incorporation and bylaws to see if they address the subject. If they are silent, then follow the Corporations Code as described above.
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