Director Tenure - Late Meeting and Recall

Hello:

Our HOA has a dilemma.

Our board election was held at the annual meeting back in April 2014.

Normally, the annual meeting is held in March; but, because we didn't have a quorum in March, the meeting was re-scheduled for April.

In September 2014, three directors were recalled, and three new directors were "elected," i.e., the form that was used in the recall was also a ballot to elect the replacement directors.

In October, the director who wasn't recalled had resigned, and a replacement director was appointed in November.

Our governing documents state that all directors "shall" serve for a term of one year. That means that my term, and the term of the "replacement" director, is up in April 2015.

As to the directors who were elected to take the place of the directors who were recalled, their terms of office expire in September 2015.

This dilemma was discussed at the last board meeting at which several homeowners were in attendance. There was disagreement as to how the problem should be handled. I was in favor of referring the problem to our counsel; however, the other directors feel that this is something that should be researched first to see whether or not there is any precedent, and also to put a lid on our legal fees (which have been significant this year for reasons unrelated to this issue).

Our president feels that we should hold the election in April. Regarding the issue of directors not serving their full term, his suggestion was that the three directors who were elected as part of the recall would effectively resign in April, and that the election could proceed.

We are bringing this issue up again at the next meeting in January 2015. If we move forward with holding the annual meeting in April, then it's a run for the roses.

Thanks for your input.

Hi Eugene

FL law may have something specific on this, but these are my general impressions from what you wrote:

You have 2 expiration dates - Sept and April. Your discussion should be on how to get to 1 expiration date. Otherwise, you are going to perpetuate this problem into future years.

The most important question is not a legal one - Will you have more candidates than positions available? If yes, this could be an issue because some people may want to hold onto their seats. If no, then nothing is really going to change because everyone will retain their seats.

IMO, deal with the practical issues first.

Are you likely to have new people run for board positions?

How many of your current board members would be willing to resign if they were going to be voted back in?

With JohnC, check your docs, especially your bylaws to see how this is handled. I'm pretty sure you don't want to be on two election cycles. Here in CA, that would involve extra postage, envelopes, copying costs , etc. to pay for.

Ours are written as JohnC suggests is common. Do FL corporations codes say anything about this??

In years of following this forum this is the first time I have ever heard of anyone arguing that a recall election begins a new term of office.

As I understand it your bylaws say you have an annual board meeting in March and that is when the board elections are supposed to take place. While it may not be expressly stated in your bylaws, that is when the one-years terms begin and end. I pity the fool that would try to convince a judge otherwise.

Nice formulation, Larry.

Eugene I'm assuming you are covered under 720 HOA's so I would suggest you read the section on recalls 720.303 Association powers and duties; meetings of board; official records; budgets; financial reporting; association funds; recalls.— No where in the section does it say that a new clock starts during a recall. Hold your meeting when it's do and let the best candidates win.

FL 720:

Err, should have been My basis for this opinion

OK, thank you, EVERYONE, for your input.

Our governing documents state that directors shall serve for a term of one year.

Regarding the recall, the directors who replaced the directors who were recalled were "elected", i.e. the document that was used to vote for the recall is the same document that was used to elect the new directors.

I got caught up on the term "elect." The recall was effected by means of a ballot. That ballot was used to elect the replacement directors. The replacement directors were elected effective with the recall. They should be, according to the governing documents, serving a one-year term.

The director who was appointed upon the resignation of the other director who wasn't recalled, according to the governing documents, will serve the remaining term of the director being replaced.

I was elected in April 2014. The director who was appointed will serve out the remaining term of the director she is replacing, and that term will expire along with mine, in April 2015.

If the directors are to serve for a term of one year upon being elected to office, then it seems to me that the directors who were elected upon the effectiveness of the recall will or should serve for a term of one year.

To further complicate things, our governing documents indicate that election of directors will occur at the annual meeting. We can't have two annual meetings.

Having said that, it is my opinion that the directors who were elected upon effectiveness of the recall serve the remaining term of the directors who were recalled, and the director who was appointed serves the remaining term of the director who resigned. That puts all of us on the same election cycle, i.e. our terms expire in April 2015. However, I also believe that a wily attorney, or a wily homeowner who hires a wily attorney will make this an issue, and I want to have an answer.

If the intention of the language is that directors who are elected upon effectiveness of a recall is that they serve the remaining term of the directors who are recalled, then that solves the problem. I just need an authoritative resolution to that interpretation of the language.

Actually, the individuals interpreting the governing documents simply misinterpreted.

The recall created a vacancy.

Although the procedure used was similar to electing Directors to a new term, that is not what happened. In accordance to FL Corporate law and HOA law, the membership was able to elect individuals to fill the vacancy because a majority of the Board was recalled. Per the statutes, if the majority of the Board was not recalled, then the remaining board members would have appointed someone to fill the vacancy.

Many often overlook Corporate statutes and focus only on the governing documents or the governing documents and HOA/COA laws. However, when an Association is incorporated, corporate laws are also applicable and typically address the administrative procedures of corporations.

When you're right, you're right.

Another resident did just that, and he found the following -- "At such a meeting as the director is removed, a successor shall be elected by the members to fill the vacancy for the remainder of the term of such director."

I was focusing on the term "election" and I was not paying attention to the broader context within which the action occurred.

I'm satisfied that, for my purposes and for our situation, the directors who were elected concurrent with the effectiveness of the recall were elected to serve the remaining term of the directors who were recalled.

I assume said resident was a MEMBER.

Do not confuse residency with membership.

Members have a 'say-so'.

NONmember residents do NOT.