Board of Directors Recall

Started by JudyB13 • 8 replies • 2797 views

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JudyB13 (Arizona)
Posts: 1

Posted:

In Arizona, Statute states that a recall can be submitted only once for the same Board Member during members term. Question is should that Petition for Recall fail for any reason like not enough signatures or forged signatures can the Petition be submitted again?
We just had a recall petition submitted with the required amount of signatures but when the signatures were being verified, one of the signatures was clearly forged. This signature was certified to be a forged signature by a state licensed forensic hand writing investigator. Removing the signature from the petition resulted in fewer signatures then required by statute. Arizona statute states that a petition for recall against a Board Member can only be SUBMITTED once during the same members term. Can this recall be resubmitted again anyway? Black's and other dictionaries define submitted as formally delivered, or yielded to an authority or tribunal. My position is that once it is handed over to the Board or management it has been submitted.

KerryL1 (California)
Posts: 14,550

Posted:

Ah, Larry and Fred from AZ will like this one.

I'm thinking: What if "submitted" means submitted to the homeowners for their decision? They are the voters and might be considered a "tribunal?'

Might need the exact wording form the statute.

GlenL (Ohio)
Posts: 5,491

Posted:

Judy I'm not an attorney but from my reading of the statute, it seems to apply to persons in public office not a privately held HOA. Either way if the homeowners wanting the recall are willing to pay for it, it seems they can have a second bite at the apple.

19-202. Recall petition; limitations; subsequent petition

A. A recall petition shall not be circulated against any officer until he has held office for six months, except that a petition may be filed against a member of the legislature at any time after five days from the beginning of the first session after his election. The commencement of a subsequent term in the same office does not renew the six month period delaying the circulation of a recall petition.

B. After one recall petition and election, no further recall petition shall be filed against the same officer during the term for which he was elected unless the petitioners signing the petition first, at the time of application for the subsequent recall petition, pay into the public treasury from which such election expenses were paid all expenses of the preceding election.

C. Signatures obtained on recall petitions by a committee or any of its officers, agents, employees or members before the filing of the committee's statement of organization are void and shall not be counted in determining the legal sufficiency of the petition.

Studies show that 5 out of 4 people have problems with fractions

GlenL (Ohio)
Posts: 5,491

Posted:

Sorry missed it on the first go round:

33-1813. Removal of board member; special meeting

A. Notwithstanding any provision of the declaration or bylaws to the contrary, the members, by a majority vote of members entitled to vote and voting on the matter at a meeting of the members called pursuant to this section at which a quorum is present, may remove any member of the board of directors with or without cause, other than a member appointed by the declarant. For purposes of calling for removal of a member of the board of directors, other than a member appointed by the declarant, the following apply:

1. In an association with one thousand or fewer members, on receipt of a petition that calls for removal of a member of the board of directors and that is signed by the number of persons who are entitled to cast at least twenty-five per cent of the votes in the association or one hundred votes in the association, whichever is less, the board shall call and provide written notice of a special meeting of the association as prescribed by section 33-1804, subsection B.

2. Notwithstanding section 33-1804, subsection B, in an association with more than one thousand members, on receipt of a petition that calls for removal of a member of the board of directors and that is signed by the number of persons who are entitled to cast at least ten per cent of the votes in the association or one thousand votes in the association, whichever is less, the board shall call and provide written notice of a special meeting of the association. The board shall provide written notice of a special meeting as prescribed by section 33-1804, subsection B.

3. The special meeting shall be called, noticed and held within thirty days after receipt of the petition.

4. For purposes of a special meeting called pursuant to this subsection, a quorum is present if the number of owners to whom at least twenty per cent of the votes or one thousand votes, whichever is less, are allocated is present at the meeting in person or as otherwise permitted by law.

5. If a civil action is filed regarding the removal of a board member, the prevailing party in the civil action shall be awarded its reasonable attorney fees and costs.

6. The board of directors shall retain all documents and other records relating to the proposed removal of the member of the board of directors for at least one year after the date of the special meeting and shall permit members to inspect those documents and records pursuant to section 33-1805.

7. A petition that calls for the removal of the same member of the board of directors shall not be submitted more than once during each term of office for that member.

B. For an association in which board members are elected from separately designated voting districts, a member of the board of directors, other than a member appointed by the declarant, may be removed only by a vote of the members from that voting district, and only the members from that voting district are eligible to vote on the matter or be counted for purposes of determining a quorum.

Forged signature or not it was submitted so I would say the parties would need to work to unseat the director at the next regular election

Studies show that 5 out of 4 people have problems with fractions

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By JudyB13 on 06/18/2014 8:48 AM

This signature was certified to be a forged signature by a state licensed forensic hand writing investigator.

It's good you found the forgery (as it should not have been forged).

However, what I find unrealistic is that the Association went to the expense of hiring a hand writing expert. This move alone would have me ask questions of the Board and keep a very close eye on how they are handling issues.

LarryB13 (Arizona)
Posts: 4,099

Posted:

After reading ARS 33-1813, I would have to agree that if a petition lacking sufficient valid signatures was submitted to the board that another petition to recall the same board member cannot be submitted during the remainder of his term of office.

So if I was afraid of getting recalled I could have one of my cronies submit a petition signed by Jim Shue and Chuck Roast. The petition gets rejected and no one else may submit another petition. Sneaky.

EllieD (Vermont)
Posts: 446

Posted:

JudyB,

Are you a Member of the Board, or are you one of the petitioners?

Getting the exact number, only, of signatures required on any petition is most always risky, regardless.

Are you a small or large Association?

Does: “that is signed by the number of persons who are entitled to cast at least twenty-five per cent of the votes in the association or one hundred votes in the association, whichever is less” apply?

Based on some of the postings I have read, it is not always easy, to verify who the actual Owners are. Also there have been discussions here, that revolve around “entitled to cast a vote”. Does your Association have a readily available “official” list of Owners “entitled to cast votes”?

What is the term of office for your Directors? One year, or?

Also wondering, if an argument could be made, saying that the petition was submitted initially only so that Owner names, and signatures, could be verified. And that once verified as having the required number of signatures – only then, was the desire to “formally” submit the petition.

Also you posted “once it is handed over to the Board or management”. Assuming you are referring to a specific petition – was it submitted to the Board, or was it submitted to management?

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By TimB4 on 06/18/2014 11:30 AM

Posted By JudyB13 on 06/18/2014 8:48 AM

This signature was certified to be a forged signature by a state licensed forensic hand writing investigator.

The problem here is that it is common for some people, such as husbands and wives, to sign documents for the other party when they are not available. If such signing is not done with a criminal intent then it is not forgery.

I agree that hiring a handwriting expert is a bit over the top. Did they contact the person whose name was allegedly forged and verify that he or she did not sign the petition and did not authorize anyone else to sign? If the signature was a "forgery," did they file a police report?

Suppose, though, the signature was a deliberate forgery. Where is the harm? The association holds a recall election and whether the board member is either dumped or retained the members have their say. Why is it worth the cost of hiring an expert to prevent the membership from voting?

Perhaps the next move should be to file petitions to remove all of the remaining board members.

BTW, circa 1983 I had a court case involving disputed signatures and I contacted a local handwriting expert. His minimum fee at that time was $2,500. You could probably triple that number for today's cost.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By JudyB13 on 06/18/2014 8:48 AM

We just had a recall petition submitted with the required amount of signatures but when the signatures were being verified, one of the signatures was clearly forged. This signature was certified to be a forged signature by a state licensed forensic hand writing investigator.

Sorry, but this really bugs me. If the signature "was clearly forged," why the need for the "state licensed forensic hand writing investigator?" All anyone needed to do was to contact the person whose signature was allegedly forged and ask him/her to verify whether they had signed the petition.

If the person says, "Yes I did," game over. If the person says, "I permitted someone to sign for me," then it is not a forgery even if it is bad judgment. It would only be a forgery if the person's name was signed without his or her knowledge and approval.

None of this requires a handwriting investigator. In fact, the only reason I can find for hiring the investigator is to have a professional pronounce it a forgery without the alleged signer's knowledge or cooperation.

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