The degree to which a vacancy on the board may be filled by the board or by the membership depends primarily on the circumstances which created the vacancy—namely, whether the vacancy was created by the resignation of a director or instead by the removal (or “recall”) of a director. (Corp. Code § 7224.)
Vacancy Created by Resignation
Unless otherwise provided in the association’s articles or bylaws, a vacancy created by the resignation of a director may be filled by approval of a majority of a quorum of the board pursuant to Corporations Code Section 7224(a). Where the number of directors then in office is less than a quorum, the vacancy may be filled by: (Corp. Code § 7224(a)(1)-(3))
- The unanimous written consent of the directors then in office,
- The affirmative vote of a majority of the directors then in office at a duly held and noticed meeting, or
- A sole remaining director.
Participation of Resigning Director
A resigning director may participate in the board’s selection of the resigning director’s replacement, provided that the selection takes place prior to the effective date/time of the resigning director’s resignation. (Mayo v. Interment Properties, Inc. (1942) 53 Cal.App.2d 654; See also “Resignation of Directors.”)
Failure to Appoint
If the board fails or refuses to fill a vacancy, the membership may elect a director at any time to fill the vacancy. (Corp. Code § 7224(b).) The election process is initiated by filing a petition with the board to hold a special membership meeting to elect a director to fill the vacancy.
Vacancy Created by Removal
Unless the articles or bylaws provide that the board may fill vacancies created by reasons of removal (“recall”) of a director, such vacancies may be filled only by approval of the members. (Corp. Code § 7224(a).)
Related Case Law
- Mayo v. Interment Properties, Inc.
(1942) 53 Cal.App.2d 654
[Board of Directors; Director Resignation] A resigning director may participate in the selection of his/her replacement where the selection takes place prior to the effective date of the resignation.