What If We Can’t Fill Enough Board Seats?

By Kelly G. Richardson, Esq., CCAL

Dear Mr. Richardson: I live in an association with several hundred members where it is quite often difficult to fill our seven-member board. What would happen if only two people were on the board or if no one was interested in being on the board?  How would decisions be made? Thanks, R.M., Anaheim.

Dear R.M.: If the HOA has too few directors to attain board quorum, the Corporations Code provides help. Corporations Code Section 7224(a) allows the seated directors by majority to vote and appoint volunteers to fill the open seats. The Open Meeting Act does not allow non-emergency action outside meetings, so an announced board meeting is required to fill the vacancies. However, until sufficient vacancies are filled to create a quorum, the board may not take any other action.

The most common reason homeowners hesitate to volunteer for board service is that they see board members putting in hours each week that are far too intimidating a commitment. Directors who are so committed that they are almost co-managers along with management are unwittingly creating a predicament for their HOA – nobody else is able or willing to put in so many weekly hours serving the HOA. In that circumstance, consider a meeting with management to discuss reallocating more tasks to management so that volunteer directors are mainly directing, simply making decisions based upon the work, investigation, and recommendations of their professional management.

Best regards, Kelly

Hi Kelly: If our bylaws say "no proxy voting," and our election rules say, "proxy voting is permitted," which one prevails? If proxy voting is permitted by an HOA, what is the procedure for doing so, please, Kelly?  We have heard various opinions!

Our board only allows membership to discuss agenda items at the END of board meetings, when sometimes the board has already voted on an item!  Is this OK? Lastly, should the membership be allowed to contribute items to board agendas? Sincerely, J.M., San Diego

Dear J.M.: Civil Code Section 4205(d) establishes a hierarchy of governing documents and rules are at the bottom of that hierarchy. Rules may not conflict with the CC&Rs or bylaws. So, if the bylaws ban proxies, the election rules may not re-establish their use. The one exception to this hierarchy is if something in the CC&Rs or bylaws violates the law. In that case, pursuant to Section 4205(a) the law controls and overrides the illegal CC&R or bylaw provision. So, in that situation, a rule simply following the law is not considered a contradiction of the illegal CC&Rs or bylaws provision and does not violate Section 4205.

I do not think proxies in HOAs are helpful, except for the purpose of achieving quorum. Given the existing 30-day voting process, essentially an absentee ballot system, nobody needs to give anyone their proxy because everyone can easily vote for themselves. Unfortunately, the law is very lax regarding proxies, providing only minimal requirements regarding their validity and generally not providing tools for a situation where the authenticity of a proxy is questionable.

Regarding when to conduct open forum, I believe the better time is earlier in the meeting, but that time should be limited. Regarding agendas, remember, it’s still the board’s meeting so they set their agenda. Thanks for your questions, Kelly