Removal of a director

Started by MichaelT21 • 35 replies • 586 views

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MichaelT21 (Arkansas)
Posts: 200

Posted:

Our bylaws state that directors may be removed by a vote of 67% of members. In our community, that is 183 votes which is a tall order. It'd take something amazingly bad to happen to get 182 people to vote to remove a director.

Am I misreading something?

Is there another option to remove a director that is behaving badly? For example, if you have a disruptive board member who shows up drunk every meeting and is belligerent, thus prevents business from being conducted, is there some mechanism besides 183 votes to remove the disruptive board member?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

A board member can lose that position by removal of the general owners. That would be the 183 to remove from the board. An officer position is slightly different. It may take majority of the board members to remove. That is because it is usually within the board to elect officers.

This of course varies from HOA to HOA. However if the person is violent and threatening then the police can step in. That is no longer an HOA matter but civil one.

Former HOA President

MaxB4
Posts: 3,513

Posted:

I would love to hear Kerry's take on this.

KerryL1 (California)
Posts: 14,550

Posted:

You just had an election, MichaelT. Are you saying you already want to get rid of a director? As you well know, MichaelT, you want to read your bylaws and your state's (WA) corporations codes to learn how you might dump a bad director without Owners' vote. Tell us what they say if anything.

MichaelT is NOT talking about officers. Try to stay on topic.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I am on topic. Just explaining the difference between removing a director and if they were an officer.

Former HOA President

WendyM5 (North Carolina)
Posts: 1,522

Posted:

If they miss a few meetings in a row or are voted out by replacement are two other common removal methods

vis ta vie

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By MichaelT21 on 02/03/2023 5:38 PM
Our bylaws state that directors may be removed by a vote of 67% of members. In our community, that is 183 votes which is a tall order. It'd take something amazingly bad to happen to get 182 people to vote to remove a director.

Am I misreading something?

Is there another option to remove a director that is behaving badly? For example, if you have a disruptive board member who shows up drunk every meeting and is belligerent, thus prevents business from being conducted, is there some mechanism besides 183 votes to remove the disruptive board member?

You are not misreading anything. Legislatures and the authors of bylaws alike do not want a majority of directors to have the power to remove a director that owners picked. It gives some protection to directors who are in the minority.

The vote to recall/remove is typically 2/3rds or 3/4s of all owners.

I personally think a director that is doing something deeply noxious not covered by the bylaws or statute might still possibly be lawfully removed if the noxious-ness is a detriment to the corporation. It would take a lot. The advice of the HOA attorney is important in such situations. I think drunken-ness at board meetings might warrant removal for at least the duration of the board meeting. A director who physically threatens others might also warrant removal for the duration of the meeting or a requirement to attend by Zoom.

WendyM5 (North Carolina)
Posts: 1,522

Posted:

If you have a meeting policy that says drunk people will be ejected and your Bylaws also state that BOD that mis meetings can be fired, then just fire him/her after they get kicked out of a few meetings in a row. you can also have a policy that attendance is taken at end of meeting.

I guess they could lawyer up and sue, claiming they partially attended the meeting, but if the rest of the board feels the same it might be hard for them to get back on the board.

vis ta vie

MelissaP1 (Alabama)
Posts: 13,836

Posted:

You don't "fire" anyone in a HOA except for a contractor/MC. A board person is ELECTED. That means they have to be VOTED out. That takes effort on the community part.

If someone shows up drunk at the meeting, you don't get "fired" for that. You are simply asked to leave the meeting until you sober up. This is more of a civil issue than an HOA.

Former HOA President

JohnC46 (South Carolina)
Posts: 14,265

Posted:

In our association we would have to have 51% of all owners voting to replace and existing BOD Member with a named replacement via a Special Meeting.

KerryL1 (California)
Posts: 14,550

Posted:

Long ago, our Board in my HOA made a written policy for "disciplining" directors or committee members. The first step: the president meets privately with the misconductee* and requires that the behavior be corrected.

The next step is the board meeting with the director or committee member in Ex. session and vote to direct them to change their behavior. This is as far as we've ever gone when I was on the Board.

If the director does not correct the behavior, the Board meets in executive session and discusses the misconduct with the director/committee member and votes to censor them. The Board composes a letter saying same and send it to the rogue director. The board even can announce that the director has been censored at an open meeting so that owners know of the misconduct. The announcement goes in the meeting minutes.

The final step is the board places the director's misconduct on an open meeting agenda and the Board votes to ask the director to resign.

We've never had to go that far and I don't even remember how an actual censor would work. Perhaps someone's willing to look it up. Our Board took the 2nd step a couple of times. In both cases the committee member or director had literally gone rogue and acted outside their authority. The director in question, without consulting with the board, had phoned an owner who was very delinquent to see if he could "help" encourage the owner to pay. A second similar offense had the board meeting with the director in ES and demanding that he stop. He resigned instead.

I think there can be several versions of the above where the board puts pressure on a director to stop the misconduct. social pressure can be very effective.

* my computer does not like this word.

KerryL1 (California)
Posts: 14,550

Posted:

Long ago, our Board in my HOA made a written policy for "disciplining" directors or committee members. The first step: the president meets privately with the misconductee* and requires that the behavior be corrected.

The next step is the board meeting with the director or committee member in Ex. session and vote to direct them to change their behavior. This is as far as we've ever gone when I was on the Board.

If the director does not correct the behavior, the Board meets in executive session and discusses the misconduct with the director/committee member and votes to censor them. The Board composes a letter saying same and send it to the rogue director. The board even can announce that the director has been censored at an open meeting so that owners know of the misconduct. The announcement goes in the meeting minutes.

The final step is the board places the director's misconduct on an open meeting agenda and the Board votes to ask the director to resign.

We've never had to go that far and I don't even remember how an actual censor would work. Perhaps someone's willing to look it up. Our Board took the 2nd step a couple of times. In both cases the committee member or director had literally gone rogue and acted outside their authority. The director in question, without consulting with the board, had phoned an owner who was very delinquent to see if he could "help" encourage the owner to pay. A second similar offense had the board meeting with the director in ES and demanding that he stop. He resigned instead after only 4 months on the board. He felt his "creativity" was hampered.

I think there can be several versions of the above where the board puts pressure on a director to stop the misconduct. social pressure can be very effective.

Our Bylaws & Election Rules (req. in CA) say that a majority of a 25% quorum of owners at a properly noticed, etc., special meeting, may recall a director. So there seems to be a wide variety of % of owners needed to recall directors.

* my computer does not like this word.

CathyA3 (Ohio)
Posts: 6,299

Posted:

I'm a bit surprised that the bylaws require that high a percentage. What are the requirements for holding a special meeting, which is the typical avenue for a recall (ie, how many owners must sign the petition, can a director alone call a special meeting, etc.)?

On the one hand, requiring a high percentage of members to approve significant things such as amendments to CC&R makes sense. You don't want squabbling factions to keep jerking the association around. On the other hand, the quorum requirements for holding the annual meeting and election can be much lower, sometimes as low as 20%. It doesn't make sense to allow a director to be elected by, for example, slightly over 10% of the membership, but require a much higher number to recall that person. A 67% requirement could mean that communities with a high percentage of landlords would never be able to recall a director.

So I suggest re-reading the bylaws and seeing if this is really what they're saying. I think there may be more to it.

KerryL1 (California)
Posts: 14,550

Posted:

To Cathy's point--yes 67% does seem terribly high. I think MichaelT should double heck his Bylaws and also his state laws.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By ElleN on 02/04/2023 6:06 AM

The vote to recall/remove is typically 2/3rds or 3/4s of all owners.

Others here have kindly jogged my memory. I take the above back. I do not think a supermajority is typical. For some of the states where HOAs rule:

In Florida, statute puts the number at a simple "majority of all the voting interests."

In Texas, statute says, "removal requires an affirmative vote equal to the vote necessary to elect the director."

In California, it's not a super-majority either. See https://www.davis-stirling.com/HOME/D/Director-Removal-Recall

In Washington and assuming one interprets a statute's "may" as "has the legal right to," it's not a supermajority of all owners. The Washington-based OP may want to check on whether his bylaw is overridden on account of Washington statutes.

MarkM19 (Texas)
Posts: 1,459

Posted:

MichaelT,
First, I must ask why do you keep changing the State you represent with your sign in name? It makes others not me think they can help you by looking into the laws in that State. I can recall at least 8 different locations you have listed over the last hundred posts on this site.

Once again Kerry always brings up great points and I also agree with Melissa here as well on her comments. The censure can be very effective as an interim step. In Ca. we had a very disruptive Director who came in Hot every meeting and tried to bring up random issues and inflate things that were obviously factually incorrect. After several issues I spoke to the remaining board members, and we Formally Censured him at our next meeting. We outlined the reasons for the censure and stated that this would be in documented in our minutes. In this case he was so upset that he resigned from the board and moved out just a few months later. The only other time we had to do it was in Texas when a rouge director who did not get the election results, she wanted. Went on FB an gave inaccurate Election result information to the community which caused us to get our HOA attorney involved and upset many in our community all based on a well-documented lie that she admitted to saying. This person is still around causing trouble on social media but thankfully no longer is on our board.

This can be effective because when people ask why a person is spreading misinformation you can point to something that is documented in our HOA minutes.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Personally I think censure is like a slap on the wrist with a wet noodle.

MarkM19 (Texas)
Posts: 1,459

Posted:

John,
Censure is a public condemnation of what this person has done. In both cases I have mentioned it really had an effect on the people that received it. Bluffing about getting them removed by getting the majority or super majority to vote them out is a lesser punishment IMO.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

In our HOA.:
10% of owners to call a Special Meeting such as to replace a BOD Member.
20% of all owners to establish a Quorum at the Annual Meeting.
51% of all owners voting in favor of removing a BOD Member with a named other owner at a Special Meeting.
51% of all owners agreeing to a Bylaw change.
2/3rds of all owners agreeing to a Covenant change.

These %'s seem fair and reasonable to me.

KerryL1 (California)
Posts: 14,550

Posted:

Agree, Mark, that the "pubic" part of censoring can be highly effective.

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By KerryL1 on 02/04/2023 9:25 AM

Our Bylaws & Election Rules (req. in CA) say that a majority of a 25% quorum of owners at a properly noticed, etc., special meeting, may recall a director. So there seems to be a wide variety of % of owners needed to recall directors.

That's not quite true.

(d) Authority of Members to Remove Directors. Except as otherwise provided in subparagraphs (c) and (e) hereof, a Director may only be removed from office before expiration of the term by the affirmative vote of the members provided that a quorum of not less than twenty-five percent (25%) of the voting power of the membership is achieved by the initial deadline date for the return of ballots. Notwithstanding this provision, (but without prejudice to subparagraph (c) hereof), a Director elected by the Commercial Owners may only be removed by a vote of the Commercial Owners.

KerryL1 (California)
Posts: 14,550

Posted:

I think my quick summary is close enough given the OP is in another state. What the heck is your problem with me this time, Max? Please be precise and concise. Do note that you have no access to our Election Rules.

KerryL1 (California)
Posts: 14,550

Posted:

Say, MichaelT, do any of these replies resonate with you? Have you dowel-checked your Bylaws? And state law?

CjC
Posts: 210

Posted:

Our covenants says if you miss 3 board meeting you are removed. Check and see if yours has that type of language?

MaxB4
Posts: 3,513

Posted:

I have issues where a Board (not the membership) decides they can remove a director because that director didn't comply with a duly approved action, or takes any action "grossly" detrimental to the whatever of the community, or "fails" to keep confidential all confidential board information.

This should be left up to the membership. It also provides a mechanism for a bad, corrupt board to get rid of good board members.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By CjC on 02/07/2023 9:54 AM
Our covenants says if you miss 3 board meeting you are removed. Check and see if yours has that type of language?

Ours say 3 unexcused BOD Meetings in a row, you are removed. Do not forget the unexcused nor 3 in a row.

KerryL1 (California)
Posts: 14,550

Posted:

But the OP's question isn't about any other HOA's bylaws or state laws, but about MichaelT's Bylaws & WA state, Max.

OR options of MichelT or others, short of amending her bylaws, like public censor, to encourage the misconductee to repair the bad behavior or resign. At worst, this would be recorded in one meeting minutes for all owners to see.

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By KerryL1 on 02/07/2023 11:28 AM
But the OP's question isn't about any other HOA's bylaws or state laws, but about MichaelT's Bylaws & WA state, Max.

??????????????

KerryL1 (California)
Posts: 14,550

Posted:

Instead of continuing to obsess about me, which has been going on for how long?, do you have any advice for the OP, Max? Or do you have NO ideas about how an assn. board might discipline a fellow director within the context of HIS bylaws and HIS state laws ?????

KerryL1 (California)
Posts: 14,550

Posted:

Instead of continuing to obsess about me, which has been going on for how many years?, do you have any advice for the OP, Max? Or do you have NO ideas about how an assn. board might discipline a fellow director within the context of HIS bylaws and HIS state laws ?????

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By KerryL1 on 02/07/2023 2:14 PM
Instead of continuing to obsess about me, which has been going on for how many years?, do you have any advice for the OP, Max? Or do you have NO ideas about how an assn. board might discipline a fellow director within the context of HIS bylaws and HIS state laws ?????

First, Michael has no clue as to what is in his/her governing docs, second, they haven't posted since the initial post. I don't have access to his Bylaws and have no clue as to what state he is referring to.

Little snarky about your comments aren't you? I wholeheartedly disagree with how your new Bylaws allow a Board to remove a director. It will come back to bite your association in the ass. I know how I would discipline a rogue director, but I don't have that power in a management company.

KerryL1 (California)
Posts: 14,550

Posted:

The Bylaws of my HOA have nothing to do with the OP. It's well known that Michael's from WA.

Ha, Ha. you have no ideas. I have no "power" to discipline, either, but we're here to advise HOA leaders, so I try to do that. But you can't help yourself, can you, Max? You've gotta come back to me.

That you are obsessed enough about me to track down my HOA, no matter how "easy" it was, is very disturbing. It did and still does feel like stalking. It means I'm limited as to what I can write here because you might get so unhinged about me, you'd contact my HOA.

Our Bylaws, whatever your opinion, Max, were rewritten by a local firm that specializes in HOA law. Our main attorney has overseen over 1,000 governing docs' amendments and restatements. Our Board completely complied with the Better Judgment Rule by relying on his expertise.

Moderators: Max is the same person who wrote under the name of Richard, CA and Mark, FL. I believe he was banned from this forum twice and not about me. He's even gotten soooo creepily personal about me that he once wrote -- believe it or not-- that his wife is much smarter than I am. Who cares about such a weird opinion re: the purpose of this forum.?

You know? I do have to look up how to report Max's frequent harassment of me to the moderators.

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By KerryL1 on 02/07/2023 3:27 PM
The Bylaws of my HOA have nothing to do with the OP. It's well known that Michael's from WA.

Ha, Ha. you have no ideas. I have no "power" to discipline, either, but we're here to advise HOA leaders, so I try to do that. But you can't help yourself, can you, Max? You've gotta come back to me.

That you are obsessed enough about me to track down my HOA, no matter how "easy" it was, is very disturbing. It did and still does feel like stalking. It means I'm limited as to what I can write here because you might get so unhinged about me, you'd contact my HOA.

Our Bylaws, whatever your opinion, Max, were rewritten by a local firm that specializes in HOA law. Our main attorney has overseen over 1,000 governing docs' amendments and restatements. Our Board completely complied with the Better Judgment Rule by relying on his expertise.

Moderators: Max is the same person who wrote under the name of Richard, CA and Mark, FL. I believe he was banned from this forum twice and not about me. He's even gotten soooo creepily personal about me that he once wrote -- believe it or not-- that his wife is much smarter than I am. Who cares about such a weird opinion re: the purpose of this forum.?

You know? I do have to look up how to report Max's frequent harassment of me to the moderators.

You really have issues!

MaxB4
Posts: 3,513

Posted:

Kerry

The topic from the OP was the removal of a director, how difficult it was percentage-wise, and whether there were any alternatives.

The problem is you have a set of Bylaws that allowed the Board to remove directors outside their qualifications, yet you never mentioned that in the process that you wrote. Sorry, since you were involved in the writing and passing of those Bylaws, and should be able to stand by and justify the association's action.

I looked up your association, like many others do here because you said you had the most difficult CCRs your attorney had ever seen. You posted the complete description under your previous name of CarolR.

Harassment????? Maybe I should have the two attorneys you didn't like come on and tell their side of the story, just for fun?

KerryL1 (California)
Posts: 14,550

Posted:

How to remove directors others than by owners' votes was the question. I believe we all agree one way might be in his bylaws. Examples from other Bylaws were given, but don't matter. They cannot help him. What matters is what's in MichaelT's bylaws, which he refuses to share. Examples were given of % of votes by owners, too. He also needs to check his state laws. My Bylaws and my state laws do NOT help him.

Justifying my HOA's Bylaws is too many degrees of separation from MichaelT's question. You are the one who's freakishly driven to have me justify them. They, btw, were almost entirely written by our law firm--not by me--seems like a new template. We, of course, needed to integrate materials about our commercial owner and their rights.

Now this is way off topic, but since Max brought it up: When I & others campaigned to throw out a rogue Board -- 2 non-HOA attorneys were the ringleaders on that Board--at the end of 2019, one attorney and 2 of his cronies were up for reelection. They all were defeated. He sold his condo & slimed his way out a few months later. Outumbered, the other attorney on the board resigned within a few weeks. She lasted about a year before she sold her condo. She had, of course, threatened to sue those who campaigned against her abusive, bullying pals. And the two attorneys' opinions of me (and many other owners here) is negative. If the owners in my HOA dumped them--and they deserved it-- why in the goddess' name would you want "their side of the story?" I really think that a Candidate's Night, when the terrible three incumbents spoke, they were evasive and noncommittal about a controversial project. I do think that put an end to their reign.

The point here is, one way to get rid of rogue directors is to vote them out via joint, unified, methodical action. But since Michael's board is brand new, he'd have to wait a year.

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By KerryL1 on 02/07/2023 3:27 PM
Max is the same person who wrote under the name of Richard, CA and Mark, FL. I believe he was banned from this forum twice and not about me.

That's a lie, I was not banned, I left on my own accord, both times.

I believe I am smarter than you and my wife is smarter than me, so, yes, my wife is smarter than you.

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