Director job abandonment

A member of the Board has only attended one meeting over the past year with no communication from the member informing the Board of the absences or communicating with us reasons for the absences. To be fair, it is common knowledge within the community that the member has been dealing with unfortunate circumstances and certainly some of the absences would be understandable. However, the remainder of the year remains an issue. The current President has been unwilling to reach out to the member.

I've reviewed FS 720, as well as our current documents for a means to deal with this and I've not found anything specific to these circumstances. So, aside from a petition for recall, is anyone aware of a mechanism for dealing with this? (I've also considered labeling this as a breach of the member's fiduciary responsibility, but once again, I've not found anything specific to that in FSs or documents.)

Thank you all in advance for your always thoughtful comments.

Unless the director sells his home, has committed a felony or falls behind in his monetary obligations for 90 days, you're kind of stuck. Absent those things, only a recall vote by a majority of all the voting interests will remove a director from the board. That's addressed in FS 720.303(10) "RECALL OF DIRECTORS" subparagraph (a)1 which says,

"Regardless of any provision to the contrary contained in the governing documents, subject to the provisions of s. 720.307 regarding transition of association control, any member of the board of directors may be recalled and removed from office with or without cause by a majority of the total voting interests."

And that's basically it. Every other excuse under the sun used to justify removing someone from the board of directors in a Florida condo or HOA has been thrown out by DBPR arbitrators. The legislature has specified that a director may only be removed from his or her position by a majority vote of the homeowners (voting interests). There is no other way in Florida. There's 1 wrinkle having to do with voting classes but that's not relevant after turnover has occurred from the declarant to the homeowners.

For clarity: Aside from the absence of a person who might otherwise serve on a committee or perform duties as a director which they agreed to do, there is no other adverse affect. Actually, since the person is not present at meetings, some would say that the meetings have gone more smoothly and we've gotten more accomplished.

A recall petition it is.

Thanks to everyone (again) for your insights and knowledge. You make this job so much easier to deal with.

That's illegal if it's a mandatory HOA under FS 720. Such an ouster will not survive a challenge.

George,

"Regardless of any provision to the contrary..." in the statute means that what follows trumps anything in the Bylaws (or any other governing document).

DBPR Arbitration Case 2016-02-9644 is on point. A Mr. Robert Wilson was removed from his HOA's Board of Directors based on a ByLaw that allowed the board to remove any board member who missed three consecutive meetings.

In the arbitrator's conclusion,

"Petitioner was improperly removed as director of the board for the Association by the members of the board and by this order the Association will be compelled to immediately reinstate him. Under Section 720.306(9)(a), Florida Statutes, directors are elected by the action of the majority of the owners eligible to vote. A board of administration in general has no authority to remove a board member by board action."

and

"To give this authority to the board would infringe upon the right of the unit owners to elect a representative of their choice and would in a given case give a board the opportunity to substitute its judgment for that of the owners on the issue of representation on the board."

That's just one case. There are many other DBPR arbitration rulings that substantially say the same thing.

2003-08-3347 DBPR Arbitration Case - Statute Completely IDs Recall of Directors
2008-05-2798 DBPR Arbitration Case - Attempt By Board to Remove Board Members Without Recall is Void
2008-00-4566 DBPR Arbitration Case - HOA and Condo Similar - Board May Not Remove Director
2009-00-3712 DBPR Arbitration Case - Recall Governed by FS 720 and not FS 617
2010-05-6098 DBPR Arbitration Case - FS 720 Trumps Articles Of Association
2010-03-4016 DBPR Arbitration Case - Removal of Board Member Governed by 718 and not 617
2011-02-8696 DBPR Arbitration Case - FS 718 Controls Recall Removal of Board Member
2014-03-7815 DBPR Arbitration Case - Board Action May Not Remove A Director
2014-00-9523 DBPR Arbitration Case - Board May Not Remove Directors for Violations of the CC&Rs
2016-02-9644 DBPR Arbitration Case - Board Has No Authority To Remove a Board Member by Board Action

Every few years it seems Florida HOA and Condominium boards think they have the power to kick someone they don't like off the board. They don't. We went through a couple of instances of that in the last 5 years. The first time, the president scheduled a board vote to kick a woman off the board for refusal to keep her dog on a leash. Rather than fight, the woman chose to resign before the (illegal) vote was taken. She had no stomach for a fight. Unfortunately, that set a really bad precedent with dozens of homeowners believing to this day that the woman was kicked off the board. Two years ago the board started making noise again about kicking someone else off the board because, literally, "no one likes her". When notified that such an action was illegal, all too many of them decided that because it had been done before (it hadn't) that they could do it again. One homeowner showed up at a board meeting and shouted, "I demand she be kicked off the board!". What a clown show. He was informed that if he could get a majority of homeowners to sign a recall petition then that would work to get her off the board. The gentleman realized that that meant work he wasn't willing to do. He went away quietly and the board member in question finished out her term.

Our documents state a board member is considered to have resigned if he/she misses three meetings in a row, regardless of the reason.

It would be better (and more professional) if this board member had simply told the board circumstances have changed and therefore a resignation is in order because there's no time to devote to the position. That said, what is wrong with your president that he/she can't make a phone call? Better yet, what's with the rest of you? Are you telling me no one has the stones to make a phone call or visit the member's home to see what's going on and if he/she still wants to be on the board? You already know there have been some unfortunate circumstances - has it occured to you or anyone else that this person may be dealing with the fallout of those circumstances and doesn't have the time or energy to address board membership? For all you know, the board member may have already assumed the rest of the board considers him/her to have resigned because of the lack of attendence.

So before you go forth with something as heavy-handed as a recall, why not just go to the member and ask the question - if it's been a year, you do deserve an answer, but you can have the conversation with some compassion. That's what grownups do.

I just try and follow the rules ... I might try an end run if the topic was important enough, but this certainly isn’t.

Jim,

1. Contact the director to inquire as to circumstances.

2. If the result is untenable, then, given sufficient community support, begin the recall process.

On one point at least, we agree: "This board member was elected by the homeowners and for him/her not to show up is disrespectful to them."

With respect to making any changes to our documents, Florida statutes (as I suspected and has now been confirmed) are clear with respect to how situations like this are to be dealt with. If a director is to be removed, they either have to resign on their own, meet a disqualifying condition, or be recalled, with the latter two being done in accordance with state statutes (exclusively). I think Florida decided at some point that they wanted to avert these types of disputes by saying "It's our way or no way". It may not be convenient or expeditious, but I understand.

Sounds reasonable, but that wouldn't fly in Florida.

My HOA went through this several years ago. A new director was elected to the board and a month later "found" something that he felt should be pursued by the board (a kickback scheme from several years earlier). The board was not receptive to the idea of mounting an investigation 5 years after the fact, and the new director went into "shutdown mode". He attended no meetings for 6 months. The board did send him a certified letter asking him to resign after he indicated to people he had no intention of doing anything vis-a-vis his board responsibilities. He refused to resign.

He advised the board that all further correspondence should be directed to his lawyer. There was nothing that could be done to force him out as long as he was current in his assessments. Eventually his lawyer must have convinced him to resign, and he did resign (after missing 6 board meetings) in a letter that came from his attorney's office.

You can't kick a director off a board in Florida for any reason other than non-payment for 90 days or a felony charge, whether or not the justification for wanting to do so is "reasonable" or not.