It Can Be More Complex Than You Expect

*Firehouse Legal blog posts provide information only, and are not legal advice. For specific legal advice contact your attorney. No seriously, contact them, they’ll be happy to hear from you.*

Vacancies on a Board of Directors between elections happen frequently.  The terms are long (6 years), and a lot can happen in that span of time—Directors move out of District, kids grow up, priorities change, or people even pass away. To handle these circumstances the legislature provided a mechanism to appoint board members to vacant positions, which is contained in RSMo  321.200.2. 

Let’s begin with what 321.200.2 doesn’t say, so we can get into the actual process.  RSMo 321.200.2 does not allow a Board of Directors to appoint a Director to a vacancy for the remainder of the unexpired term. This is a pretty common misconception, based on the fact that certain appointments for other political subdivisions do, in fact, fill vacancies by appointment for the remainder of a term.  For Fire Districts, however, the process is different.

Vacancies on a fire district board are filled by an appointment made by the remaining members of the Board. The appointee then serves until the next regular biennial election cycle for the District (Districts should have a director’s election every other year). At that time, the remainder of the term goes up for election per normal process. No special election is held between regular election cycles either; the District should remain on its regular every-other-year election routine. Practically, this means the appointed member only serves until the next District election cycle, which could mean a month, a year, or more depending on when the vacancy occurs relative to the normal election cycle.  At the time of that next election cycle, the appointee will have to run for election in order to hold onto the seat.

This can be further complicated by a few words inserted in 321.200.2. Vacancies are filled by the remaining elected members of the Board “except when less than two elected members remain on the board.” This is another issue that gets Boards into trouble, and admittedly there are differing schools of thought about the affect of this clause on the appointment process. My view, and the view of most attorneys I have spoken with on this matter, is that if you have less than two members on your Board who have stood for election/reelection, then a vacancy cannot be filled by appointment. In this instance, the Board would need to petition the Circuit Court of the county where the District is located requesting appointment of a Board member.  The process is fairly straightforward, but as with most issues involving the courts, I encourage you to engage the assistance of an attorney.  In any situation where you are unsure of the process or appropriateness of an appointment, the assistance and guidance of an attorney could save you from a mistake and save money in the long run.