HOA Board Recalls, Part I: Heading Off a Recall Vote

August 2009
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Tags: Recalls

This is the first in a two-part series dealing with recall votes. In this article, we discuss how associations can avoid recall votes.

Are there rumblings about a recall vote at your association? Before you launch the painful and contentious process of recalling a board member, remember that you may not have to go through the entire recall process to get what you want. Sometimes just the threat of or initiation of the recall process can push board members to face the music and step down.

Here, two association experts explain how careful negotiation helped associations avoid the expense and tension created by recall votes.

Gentlemen, Start Your Recall Engines

In one association Duane McPherson managed, a compromise allowed the association to avoid a full-blown recall vote. Here's what happened.

The association had a seven-member board of directors. Three were current members, and four had joined the board in a recent election. The four new members collaborated to take control of the board and push a new agenda, but their efforts drew ire. "It was just a mess," says McPherson, division president at RealManage, a San Rafael, Calif., association management firm that oversees properties in Arizona, California, Colorado, Florida, Louisiana, Nevada, and Texas. "The residents were up in arms and ready to recall the new members."

The recall process was begun, but it was never completed. "There was a negotiation among all the board members, and all of them compromised and worked out a solution that was acceptable to everyone to try to get out of the recall process," explains McPherson. "Roughly a month later, the entire board resigned, and we held a new election for all seven board members. It worked really well. It was the best voter turnout I've ever seen. Of the four new members, two were reelected, and two weren't. That action literally took a community that was pretty divided and calmed everything down. It led to fewer problems in the community, and everybody came away happy and unscathed. How embarrassing would it be to be a recalled board member in the community where you live?"

In that case, McPherson says, the threat of the recall was appropriate. "There were things going on that violated the governing documents and federal and state laws that could have resulted in a larger problems than just the recall itself," he says. "The compromise that alleviated the recall vote was also best for everybody. It stopped further action that could have resulted in a lot more harm to the community."

Laying Your Cards on the Table

This year, Amy H. Bray, a partner at Andersen, Tate & Carr PC in Lawrenceville, Ga., who represents condo and homeowners associations, also worked closely with an association on a potential recall in which the association was able to avoid holding the vote.

"I had a big recall issue I worked through with a group, and we ended up turning it into a minor issue," explains Bray. "The board member they were seeking to recall ended up missing enough official, properly called and noticed board meetings that the board member was automatically eligible to be kicked off the board."

Here's the back story. Concerns were emerging over the way the board member was managing the association's Web site and dealing with owners. "People had evidence that she was manipulating the Web site and polls in an improper fashion," explains Bray. "People said their posts were being deleted from the Web site, and posts were included that people said they didn't write but that had their names attached to them. She had also stepped in and told people that architectural approvals that were pending had been approved. She had just started to exercise her power in personal ways that were very inappropriate. So the association started gathering evidence A lot of things on their face looked improper, and she didn't really have any good reasons why they happened."

The association brought Bray in to began the process of determining how to recall the board member. Luckily, the governing documents stated that board members with a certain number of unexcused absences were eligible for removal. "We had great documents to start with," says Bray. "Not all bylaws have that language. We sat down with the board member and said, 'We're going to go through the recall process, and if you want to resign, we'll give you that option,'" explains Bray. "The board member consulted with a lawyer and told the board, 'I think I'm going to resign,' but she didn't actually resign."

Instead, she failed to show up at several meetings, and the board used its power to remove her without a recall. "We got lucky," says Bray. "She chose not to fight it."

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