Recall a Board Member -HELP

Hi All,

We live in a 166 unit complex of which 70% are investment properties/rentals and most unit owners are never here and rarely vote on anything. The remainder of us do and are very active in the building.

We have an incident that occurred recently at a board meeting (via Zoom) whereby and outburst happened with a Board Member and a motion was passed to remove the board member by the Treasurer. It was seconded but the remaining 4 members 4 decided to give the member another chance.

Those of us online were outraged and are seeking to recall this board member but there is some confusion with Statue 718/720 in FL which deems us able to remove the board member for no cause either via meeting or written. I think I understand that if we notify people of a special meeting and at least 10 % of the unit owners respond and we attain a majority we can deliver that to the Board and it will suffice. However we have been told that a written ballot is the way to go but the confusion is when written its statute "majority of the total voting interests"? What does that mean. I would say that onsite we maybe have 50 unit owners of which maybe 30 are active and they all want the member out due to various other instances including the most recent. So do we have to send out notice to all 166 unit owners which in reality there are probably only 120 actual owners, as several own multiple units or do we just mail everyone and the hand deliver to the 50 unit owners onsite knowing that only about 30 will respond, does that suffice a recall if 30 unit owners vote recall at over 50%. Or do we just have a meeting with social distancing of more that the 10% in person at an emergency meeting and take that to the Board?

The Board is very new and this person kind of snuck in via some dubious votes but that is another matter. I have read the Arbitration portion of it all, the 5 days etc etc (sounds like a pain in the you know what) but we think that with the Treasurer making the motion and the 2nd being the former President our recall notice would suffice and they would acquiesce immediately. We just seek some clarity from people with knowledge of the recall process here in South Florida.

Many thanks in advance.

"Majority of the total voting interests" clearly means the majority of unit owners, in my opinion. Without seeing the actual wording, I'm guessing the majority of 10% of the respondents is only to approve a recall vote. You are trying to remove an elected board member, it makes no sense that less than 10% of the owners could do that.

This is a serious issue and I think you should consult an attorney, especially if there is any disagreement on the interpretation of the code.

It takes a majority of all voting interests to remove a board member. The board cannot do it by themselves and a motion at a board meeting by the Treasurer or any other board member to do so is meaningless since a board has no power to do such a thing.

Both the condo statute, FS 718, and the HOA statute, FS 720, are clear that only a recall vote by a majority of the voting interests can remove a board member, and that supercedes anything else that might be in your governing documents. What the sitting board wants doesn't matter. A majority of the homeowners voting for a recall is the only thing that matters.

I concur with George.

Board members are elected by the homeowners, so if you want this person out, you'll have to convince the homeowners to either recall him or her, or vote him/her out in the next board election. A censure will let the homeowners know the rest of the board felt the behavior was inappropriate - it's their responsibility to decide if that person should continue. If you're on the board and everyone feels they can't work with this person, you could ask that she or he resign, but that's it.

it would be best to call a special meeting and let both sides have their say before voting instead of putting a time limit on the vote. These days you'd have to have it via a conference call to ensure social distancing. However, if the homeowners don't respond to any of this, that's also their right, although it may be a bad idea. You're finding out the hard way that apathy is a huge problem in HOAs and that's why It can take so long to make major changes of any kind.

It may also be this person had a really horrible day, resulting in scrappy behavior. It happens to everyone, including you, so wait and see how that board member responds. If he/she can't behave and is shunned, there may be a resignation and that will be that.

Correct. Nationwide condominium/HOA Declarations make it difficult to recall a director. Often folks unhappy with a director just wait for the next annual election and throw the director they dislike out. Advantage: It is a lot easier logistically. Disadvantage: The condo/HOA may be stuck with a jerk for a director for several months.Nearly all condos/HOA face severe voter apathy. In a condo where the rental rate is high, voter turnout tends to be particularly bad. I am accustomed to being happy if 20% show up (in person or by proxy). In my experience, forty percent is quite high. Granted it makes a recall difficult to impossible.By my reading of the Florida Condo Act, the vote must happen at the Special Meeting that 718.112 (2) (j) requires. Your group will have to follow the notice requirements. I think the requirement is to notify all members at least 14 days before the meeting. In my opinion, you should mail each unit's owner, even if this results in duplicate mailings. On the positive side, your group can collect proxies.

It appears that a quorum for a meeting of units owners is half the voting interests. So your group should maybe aim to collect proxies representing the votes of at least half the voting interests. Per the Condo Statute, I think you should use the "limited proxy" that the Florida Division of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business and Professional Regulation. The Division (as its known in the statute) has a web site and I think there are phone numbers there.

I think your best chances are to start a campaign that includes phone calls and maybe one or two well written, bullet-pointed, one side of one page, large font letters. Make sure only the facts are published (to be fair and so as to not waste time on a director claiming defamation).

Alternatively, wait for the next election.

GenoS and GeorgeS21 are Floridians and write based on much experience. GenoS is particularly well-grounded in the legalities IMO. I would give their posts a lot of attention.

Should we present documents to the Board as a whole so they may talk with the said board member with our intent to file for recall if no resignation forthcoming? I think several on the board are not aware of past behavior.

If these acts were committed using this person's status as a director, then a letter from the HOA attorney is more than appropriate, including a threat of obtaining a restraining order against him.

Please clarify: Was this director elected by the unit owners (a.k.a. "the membership") to serve on the board? Or was there a board vacancy, and the remaining directors voted to appoint this person to the board?

It makes a huge difference. Florida's Not for Profit Corporation Act states that a director who was appointed to the board by the other directors may be removed by the directors. See
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0600-0699/0617/Sections/0617.0808.html

Boyd

Was this BOD Member elected to the BOD by owners or appointed to the BOD by the BOD? If appointed by the BOD, then the BOD alone can remove him.

Not so in Florida. The statute provides that only a majority of the owners may vote to remove someone from the board. As far as I know, that goes for every board member regardless of how he or she got onto the board in the first place, e.g. by getting elected or by getting appointed.

There is no "only" or other qualifier in the statute.

On this subject, the Florida Not for Profit Corporation statute reads in part:
==================
617.0808 Removal of directors.—
(1) Subject to subsection (2), a director may be removed from office pursuant to procedures provided in the articles of incorporation or the bylaws, which shall provide the following, and if they do not do so, shall be deemed to include the following:
(a) Any member of the board of directors may be removed from office with or without cause by:
1. Except as provided in paragraph (i), a majority of all votes of the directors, if the director was elected or appointed by the directors; or
2. A majority of all votes of the members, if the director was elected or appointed by the members.
...
===================

I think this means that, if this director were appointed by the board and not elected by the members, then the board would have the right to remove the director.

I agree.

While he was a director? Sorry I cannot quite tell.

Obviously I am not in your shoes. I likely do not have the pulse of the situation.

You all certainly have the lawful right to try to get together a Special Meeting to recall any director and then, with a majority vote of all units, remove him or her as a director. FWIW I have no issue with this.

As for this person messing up again: I tend to agree it's more likely than not this person will not change.

That's an impermissible reason for an executive session (a/k/a "Board Meeting Closed to the Owners") in Florida.

FS 720.303(2)(a) says, "Meetings of the board must be open to all members, except for meetings between the board and its attorney with respect to proposed or pending litigation where the contents of the discussion would otherwise be governed by the attorney-client privilege."

FS 720.303(2)(b) says, "Notwithstanding any other law, meetings between the board or a committee and the association’s attorney to discuss proposed or pending litigation or meetings of the board held for the purpose of discussing personnel matters are not required to be open to the members other than directors."

And that's it. Any discussion of discipline against a board member can't be done behind closed doors in Florida. Any board meeting that is closed to the owners must be properly noticed, as well. A board can't decide on the spur-of-the-moment to "go into a closed session".

Our CCR's dont specifically speak about removal, but the ByLaw document does. It shows, "Any officer may be removed from office by a majority of the Board at any time with or without cause." I'm not sure if other communities have a ByLaw document.

Honestly it makes getting anything done very difficult. I am constantly afraid other members of the board who are buddy-buddy will just kick me off for having a different opinion.

Pay attention to this. A BOD removing an Officer does not mean they are removed from the BOD. They are still a BOD Member, just not an Officer.

How did your meeting go?

The “speaker” would have had to be recognized by the president in order to Bring this up at a meeting.
If the president considers the subject not a board matter, he can rule not to allow the presentation at the meeting.

An outside group wants this guy removed. Don’t expect this to be a board job.

Unless forgiven by their docs, then yes

In Florida in particular, is it possible that a recall election requires (or allows?) a simultaneous vote for a person to replace the recalled director?

Else I say yes, the directors can do this with a motion and stroke of the pen. I suppose the owners, if angry enough, could then repeat their recall effort, but this time, removing all directors who voted to appoint the person the owners want off the board.

This argues for getting a feel in advance of which directors would, after the recall, tell the owners to stuff it and appoint the person the owners had just recalled.

It's really hard to explain the dynamics of how bad things are. This is a shot across the bow to test the waters. Once we get an honest response as to whether they take the initiative or not, then it will become more of an issue.

We have conferred with a lawyer and they have recommended this action based on everything else they are aware of.

Thanks Sue.

Lot's happening here and several owners have now filed lawsuits objecting to the actual Board vote a few months ago. It's getting kind of crazy but we all feel that what we need to happen will slowly be accomplished.

Not easy.

Excellent, Boyd. This thread isn't that old, but if there's a big change or new sequence of events, you could start a new thread.