Question about Recall Process

NpB (Arizona)
Posts: 605

Posted:

A.R.S. 33-1813 outlines the process for removal of a Board member. I'm not going to use up space to post the entire statute. I have a specific question about 4d of this section which states

"For purposes of a special meeting called pursuant to this subsection, a quorum is present if the number of owners who are eligible to vote in the association at the time the person attends the meeting equal to at least twenty percent of the votes of the association or the number of persons who are eligible to vote in the association at the time the person attends the meeting equal to at least one thousand votes, whichever is less, is present at the meeting in person or as otherwise permitted by law."

Due to the COVID-19 pandemic, meetings are being held virtually, so would ballots be sent out my mail to all 50 members and then the recall is valid if at least 10 people return a ballot and 6 of those returned ballots have a yes vote for the recall of a Board member?

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By NpB on 10/21/2020 3:06 PM
A.R.S. 33-1813 outlines the process for removal of a Board member. I'm not going to use up space to post the entire statute. I have a specific question about 4d of this section which states

"For purposes of a special meeting called pursuant to this subsection, a quorum is present if the number of owners who are eligible to vote in the association at the time the person attends the meeting equal to at least twenty percent of the votes of the association or the number of persons who are eligible to vote in the association at the time the person attends the meeting equal to at least one thousand votes, whichever is less, is present at the meeting in person or as otherwise permitted by law."

Due to the COVID-19 pandemic, meetings are being held virtually, so would ballots be sent out my mail to all 50 members and then the recall is valid if at least 10 people return a ballot and 6 of those returned ballots have a yes vote for the recall of a Board member?

Because of the pandemic, if this went to court, then I believe the lawsuit would be a "case of first impression" for the court. The court is going to consider what is reasonable. If I were the judge, then I would rule that voting by mail is reasonable. Furthermore, I would rule that, if at least 20% of the eligible voters submitted a ballot, then quorum was met. Lastly, I would rule that, if a majority vote to remove a director was achieved, then the majority vote is lawful and holds.

If 50 voters are eligible with ten submitting ballots; and six voting for the recall; then the six get their wish.

NpB (Arizona)
Posts: 605

Posted:

Quote:

Posted By AugustinD on 10/21/2020 3:27 PM

Posted By NpB on 10/21/2020 3:06 PM
A.R.S. 33-1813 outlines the process for removal of a Board member. I'm not going to use up space to post the entire statute. I have a specific question about 4d of this section which states

"For purposes of a special meeting called pursuant to this subsection, a quorum is present if the number of owners who are eligible to vote in the association at the time the person attends the meeting equal to at least twenty percent of the votes of the association or the number of persons who are eligible to vote in the association at the time the person attends the meeting equal to at least one thousand votes, whichever is less, is present at the meeting in person or as otherwise permitted by law."

Due to the COVID-19 pandemic, meetings are being held virtually, so would ballots be sent out my mail to all 50 members and then the recall is valid if at least 10 people return a ballot and 6 of those returned ballots have a yes vote for the recall of a Board member?

Because of the pandemic, if this went to court, then I believe the lawsuit would be a "case of first impression" for the court. The court is going to consider what is reasonable. If I were the judge, then I would rule that voting by mail is reasonable. Furthermore, I would rule that, if at least 20% of the eligible voters submitted a ballot, then quorum was met. Lastly, I would rule that, if a majority vote to remove a director was achieved, then the majority vote is lawful and holds.

If 50 voters are eligible with ten submitting ballots; and six voting for the recall; then the six get their wish.

Thank you for your well reasoned analysis. State statues can't predict or cover everything in life.

AugustinD
Posts: 5,144

Posted:

I see a number of Arizona law firms saying to have virtual meetings for board meetings and annual meetings, regardless of what the HOA's governing docs say.

Perhaps the bigger issue here is whether the incumbent board will fight the recall, either legally, using members' dollars to pay for the attorney; or simply by not recognizing the recall, forcing those supporting the recall to lawyer up.

AugustinD
Posts: 5,144

Posted:

Of course, this may be a hypothetical and attention-getting post into whose maw I fell.

NpB (Arizona)
Posts: 605

Posted:

Quote:

Posted By AugustinD on 10/21/2020 3:49 PM
I see a number of Arizona law firms saying to have virtual meetings for board meetings and annual meetings, regardless of what the HOA's governing docs say.

Perhaps the bigger issue here is whether the incumbent board will fight the recall, either legally, using members' dollars to pay for the attorney; or simply by not recognizing the recall, forcing those supporting the recall to lawyer up.

Section 4c of that statute states "The special meeting shall be called, noticed and held within thirty days after receipt of the petition."

If a member were to submit a petition with at least 13 member signatures (25% of 50 members), how could the Board challenge it legally?

AugustinD
Posts: 5,144

Posted:

NpB, is this a hypothetical?

NpB (Arizona)
Posts: 605

Posted:

Quote:

Posted By AugustinD on 10/21/2020 3:58 PM
NpB, is this a hypothetical?

NO!

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By NpB on 10/21/2020 3:56 PM

Section 4c of that statute states "The special meeting shall be called, noticed and held within thirty days after receipt of the petition."

If a member were to submit a petition with at least 13 member signatures (25% of 50 members), how could the Board challenge it legally?

If the 13 members are eligible to vote, the Board can only use pandemic reasons to try to lawfully avoid the meeting/vote. Any other reason is the HOA breaking the law. Here at hoatalk, we are learning of Boards refusing to hold meetings of members, period, on account of the pandemic.

The group seeking the recall may have to file a complaint with the Arizona Department of Real Estate, per https://azre.gov/consumers/hoa . The problem may be that the ADRE may not know how to settle this.

But I think you know about ADRE already.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

So, if not hypo, npb, please outline your involvement, interest, and provide some chronology.

NpB (Arizona)
Posts: 605

Posted:

Quote:

Posted By AugustinD on 10/21/2020 4:11 PM

Posted By NpB on 10/21/2020 3:56 PM

Section 4c of that statute states "The special meeting shall be called, noticed and held within thirty days after receipt of the petition."

If a member were to submit a petition with at least 13 member signatures (25% of 50 members), how could the Board challenge it legally?

If the 13 members are eligible to vote, the Board can only use pandemic reasons to try to lawfully avoid the meeting/vote. Any other reason is the HOA breaking the law. Here at hoatalk, we are learning of Boards refusing to hold meetings of members, period, on account of the pandemic.

The group seeking the recall may have to file a complaint with the Arizona Department of Real Estate, per https://azre.gov/consumers/hoa . The problem may be that the ADRE may not know how to settle this.

But I think you know about ADRE already.

Yes, I am familiar with ADRE dispute resolution process. If a Board holds virtual meetings, I don't see how they can avoid not having a special meeting to address a recall petition. Also not addressed is electronic signatures. If I collect 13 signatures electronically (Members states in an email "I sign this petition electronically to hold a special meeting to recall Board member ZYX") is that also valid?

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By NpB on 10/21/2020 4:34 PM

Yes, I am familiar with ADRE dispute resolution process. If a Board holds virtual meetings, I don't see how they can avoid not having a special meeting to address a recall petition.

I agree that the above argument is logical and should carry enormous weight at any hearing to adjudicate this matter.

Quote:

Posted By NpB on 10/21/2020 4:34 PM
Also not addressed is electronic signatures. If I collect 13 signatures electronically (Members states in an email "I sign this petition electronically to hold a special meeting to recall Board member ZYX") is that also valid?

I believe certain requirements would have to be met. Here is an overview for Arizona:

https://www.roselawgroup.com/is-an-electronic-signature-valid/

Many folks here note that recalls rarely succeed. Boards are armed with well-paid attorneys to find a way to legally invalidate them. The owners attempting the recall generally (and foolishly) do not bother hiring an attorney.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By AugustinD on 10/21/2020 5:18 PM

Posted By NpB on 10/21/2020 4:34 PM

Yes, I am familiar with ADRE dispute resolution process. If a Board holds virtual meetings, I don't see how they can avoid not having a special meeting to address a recall petition.

I agree that the above argument is logical and should carry enormous weight at any hearing to adjudicate this matter.

Quote:

Posted By NpB on 10/21/2020 4:34 PM
Also not addressed is electronic signatures. If I collect 13 signatures electronically (Members states in an email "I sign this petition electronically to hold a special meeting to recall Board member ZYX") is that also valid?

I believe certain requirements would have to be met. Here is an overview for Arizona:

https://www.roselawgroup.com/is-an-electronic-signature-valid/

Many folks here note that recalls rarely succeed. Boards are armed with well-paid attorneys to find a way to legally invalidate them. The owners attempting the recall generally (and foolishly) do not bother hiring an attorney.

I agree. Rarely are Recalls successful especially when the one(s) being recalled decide to legally fight it.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By NpB on 10/21/2020 3:06 PM
A.R.S. 33-1813 outlines the process for removal of a Board member. I'm not going to use up space to post the entire statute. I have a specific question about 4d of this section which states

"For purposes of a special meeting called pursuant to this subsection, a quorum is present if the number of owners who are eligible to vote in the association at the time the person attends the meeting equal to at least twenty percent of the votes of the association or the number of persons who are eligible to vote in the association at the time the person attends the meeting equal to at least one thousand votes, whichever is less, is present at the meeting in person or as otherwise permitted by law."

Due to the COVID-19 pandemic, meetings are being held virtually, so would ballots be sent out my mail to all 50 members and then the recall is valid if at least 10 people return a ballot and 6 of those returned ballots have a yes vote for the recall of a Board member?

I say it says it takes 20% of ALL ELIGIBLE VOTERS voting for the recall.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JohnC46 on 10/22/2020 8:48 AM
I say it says it takes 20% of ALL ELIGIBLE VOTERS voting for the recall.

Does the following change your mind? Excerpt from A.R.S. 33-1813:
"The members of the association who are eligible to vote at the time of the meeting may remove any member of the board of directors, other than a member appointed by the declarant, by a majority vote of those voting on the matter at a meeting of the members."