Removal of HOA Board

We have a President of our HOA who we have started a recall petition. Our management company advised us that it is easier to recall the entire board than to try to recall an individual because recalling an individual requires a higher percentage of yes votes as opposed to recalling the entire board. We have notified the other board members that we do not want them to feel offended and we hope the re-run for office. When I say "we" I am talking about an initial group of about 20 homeowners in an HOA of about 174 homes. This is the beginning and we can get probably the majority of homeowners to support this effort but the HOA president has refused to resign. He has told outright lies and we have caught him in the act but he finally apologized but the next day he went back to skirting the board and obligating HOA funds for legal fees that did not have board approval. When we have asked for written responses from the attorney on a certain matter, his response was that the homeowners are not allowed to read it since the board discussed it in Executive Session and is therefore privileged. He has called several Executive Sessions in the last 2 months to discuss items that some board members feel should be discussed with the homeowners but he refuses.

Unfortunately, I think this is coming down to a group of homeowers sueing the board for not following the CC&Rs, he turned off the website and has not communicated by email on certain non legal matters or sent out meeting minutes or mailings. He has lied to us and we know he has but we cannot get the legal documents from the attorney due to executive discussions.

Can anyone give me thumbnail idea of how to sue the board in California? This is such a liberal state, I fear a judge will throw it out and we'll have to live with his antics. Thanks

Greg,

Per you MC comments, I'm of the expectation that your Association allows for cumulative voting. Per davis-stirling.com Recall Vote page if the Association has cumulative voting there is a two stage process to remove an individual director. Basically it's a double vote. 1 Vote for removal and then another vote to block the removal (I know, cumulative voting causes a lot of issues).

To remove the whole board, it's a straight vote and cumulative voting does not apply.
Here is a link to davis-stirling.com's resignation and recall menu page which should be helpful.

It's a shame that the Board is acting childish and not communicating with the membership. However, I would expect any communications about the recall to be limited or non-existent. If your web site has a forum on it, it's possible that the Association attorney advised them to remove the forum and taking down the site was the easiest way.

If the Association is not following the laws or the Governing documents, you may file legal action to force compliance. If this is your desire, I would suggest contacting an attorney. You of course will need to pay your attorney and you will also need to pay your share (because your a member) of the Associations attorney who is defending the Board. Win or lose it will cost you money. This is why taking legal action is typically a last resort.

As for the Association attorney, one thing you need to remember is the attorney works for the Association, not the members. The Association is ran by the Board. Therefore, in the recall process, the attorney works for the Board and any communications between the Board and the Attorney is considered attorney-client privlege and, per CA law it's part of a list of records that can be withheld from the membership inspection.

You might want to send a letter to the Assocaitions registered agent (typically the attorney), with a copy to the Board, requesting to inspect the records you are allowed to see.

Here is link to davis-stirling's Records menu page which could be helpful.

Hope this helps,

Tim

Greg, I suspect, along with Tim, that your HOA permits cumulative voting, so recalling the whole board is easiest. As Tim suggests look at the various parts of davis-stirling.com for background and to educate yourselves.

If you do have cumulative voting, it's stated in your Bylaws. You and some others who are interested should get to know the Bylaws. If they're more than 6 or so years old, parts of them may have been superseded by the Davis-Stirling Act. That, again, suggests going to davis-stirling.com. As John46 says, read & learn.

In our 200+ HOA, about 15 of us were able to learn a lot and then vote out some of the bad apples on our 7-member Board at our annual meeting and election. They also were ignoring the Open Meeting Act (part of Davis-Stirling) and making decisions behind closed doors. Many of the matters shouldn't have been in executive session. In one year from that time, we'd gotten rid of all of them. and things have been going great since!!

How many are on your Board? Why doesn't the Board vote the prez out of office?? On most Boards, it only takes a majority of directors. He'd still be on the Board, but wouldn't be president. As it is now, why are the rest of the directors going along with the president's illegal actions??

Why is the president permitted to obligate the Board for attorney's fees? Are you sure the whole board isn't approving those expenses?

So it's best to try to do it on your own. If you have a reputable Management Company, they should give you the documents you want to see, but not attorney/client privilege materials, which must be kept confidential. Per CA law, you may read your HOA's contract with the MC and it might say that the MC may not follow any board directives that oppose CA law or your governing docs.

What's the legal issue, by the way?

My husband and I took our board to court. We were in court three times and won but we are still doing follow up.

Easy thing to do:

Go to small claims court for documents.

The new law in California says that the board can take no action without a meeting and the board can have no meetings without notifying the membership AND posting an agenda. It is very clear what can be discussed in executive sessions.

Meeting minutes are required by law 30 days after the meeting. Even though things like newsletters are not mentioned, we were successfully able to demand newsletters that the board had sent to everyone but us. However, this required me to challenge the judge's initial decision regarding production of documents.

Judges commonly do not know laws pertaining to common interest developments.

I would love to start a movement to put boards under the power of the attorney general just like they recently did in one state. That would make a tremendous difference.

If you're interested in talking, you can contact my editor.

http://www.pasadenaweekly.com/cms/story/detail/constitutional_condo_conundrum/11328/