To Appoint or not to Appoint

“First, look to your governing documents and state statutes to see if there’s anything about how to handle an appointment procedurally,” says Donna DiMaggio Berger, managing partner at Katzman Garfinkel & Berger in Ft. Lauderdale, Fla., who advises associations. “Remember that you need to appoint someone who’s eligible to serve. So eligibility rules will also apply.”

Also look for provisions dictating how long the appointee will serve. “Does the person serve just until the next election or the remainder of the former board member’s term?” asks Elizabeth White, a shareholder and head of the community associations practice at the law firm of LeClairRyan in Williamsburg, Va. “That’s determined by your governing documents or state nonstock corporation act. Check both because a lot of governing documents don’t follow state code.”

5 Factors in Filling HOA Board Vacancies

“Outside of your governing documents or the law, there aren’t hard–fast rules,” says White. “But there is an analysis.” Here are factors to consider:

1. Don’t appoint just anybody. “Some associations really struggle to find people willing to serve on the board,” says White. “But because of your fiduciary duty, you shouldn’t appoint someone just to have a warm body.”

2. Be open with members—when it’s smart. “You might let the community know you’re looking to fill a vacant seat and if owners are interested to please let the board know,” says Berger. “That gives a lot of transparency into the board’s process and provides a feeling of inclusion.”

However, that may not always be wise. “Consider whether you should get buy in from owners or whether there are contentious issues that will just be inflamed,” advises White. “Some boards are dealing with high–stakes litigation with dissidents. So you have to be strategic about who fills that vacancy because that person will be privy to confidential information. Maybe dissidents say, ‘You’ve got to appoint one of us.’ You may know that’s not going to be in the corporation’s best interest to put a dissident you’re in litigation with on the board or to even to ask for statements of interest. You may want to carefully screen and handpick a person without doing calls for statements of interest.”

Berger admits there are risks to asking members if they’re interested but notes that you’re not required to pick those people. “If the resident troublemaker throws his hat in the ring, there’s nothing that says you have to appoint him,” she explains. “Even then, sometimes getting those people involved isn’t a bad idea. I’ve said for a long time that having a condo draft for board members isn’t a bad idea because the people who cry the most about not getting on the board will see it’s not all it’s cracked up to be.”

3. Consider how close you are to an annual meeting. You shouldn’t let a vacancy go on and on if you can help it,” says White. “If a meeting’s coming up, it might be wise to wait if you think members will resent that you’ve appointed someone rather than waiting for an election or it will look as though you’ve acted in secrecy.”

On the other hand, a short–term appointment might be an opportunity for your board. “If there are only four or three months left to fill, that’s an easier tryout period for a questionable candidate than two years,” says Berger.

4. Factor in how the seat became vacant. “If members have removed this person from office, I suggest you go back to the membership for recommendations,” says Kristen L. Rosenbeck, a partner at the Mulcahy Law Firm PC in Phoenix, which represents associations. “Sometimes the documents clearly require that, but if they don’t, you should. You may have the authority to put a new person in place, but if there’s a highly contested issue, you should be open to suggestions. If your documents require a new election, an election should happen immediately afterward.”

5. Consider filling the seat with an owner interested in serving. “Some boards take the path of least resistance and appoint someone they like,” says Berger. “That doesn’t mean that’s the best person to fill the slot. I always suggest you think about who ran and missed getting on the board by the nick of a hair? That person might be best for a couple of reasons. That person has an interest. You also know there were people who were interested in that person sitting on the board. And that person might be angry, so that appointment could ease tension.”