President handed petition for removal, thoughts?

Clearly this is a conflict of interest for the Board President. I would suggest you discuss this aspect with the President and let them know that you will be taking the responsibility to see that all matters are carried out in accordance with the governing documents and appropriate laws.

Reassure them that it is not a personal decision, but it is good corporate business for them to allow the process to be fulfilled by someone other than themselves.

I would suggest you provide the Board President with a memo to sign that basically says something to the effect

On I received a petition for recall, whereas according to the governing documents, the responsibility to fulfill the recall election falls to the President, and whereas the subject of the recall is the President. It is clear to any reasonable person that there is a conflict of interest. Therefore as is allowed in the governing documents, I transfer all responsibilities for the recall election to the Vice President.

This allows them to take the high road, act as a responsible fiduciary, and to remove any challenge of an improperly handled recall.

Good luck

ChrisB4: I am confused as to the process being used:
.."The President of our HOA was handed a petition to consider his removal... Per our By-Laws he should SIGN IT and he has 45 days to call a special meeting..."

What is he to sign? An agreement that Okey, dokey, I will go quietly....
Not to make fun, but it is unclear what the President's signature on the petition denotes.

You state the ..."By-Laws have a process for removing members of the Board and most of that is co-ordinated thru the President, but our By-Lays don't make specific stipulations for the removal of the President,.."

1) IF the person in the President role was appointed by Board members to a seat on the Board to finish out a term, then it is the Board who un-appoints
or removes him.

2) IF the person was elected to a 'seat' on the Board (now in role of Pres.) by the membership, then it is the membership who votes to remove him from his seat or Recall him from the Board altogether.

You need to refer to your docs re Special Meeting and whether a 'member' can request one--how it is scheduled, how it is communicated to the membership, and that it is for a specific purpose, etc. The notice should clearly explain whether a vote will be taken (the need for proxies or mail-in ballots) and the business which will be carried out (resignation requested, fill seat, etc.)

Will the person assuming Pres. seat on the Board be appointed or elected in at the same meeting?

It was asked:

"Will the person assuming Pres. seat on the Board be appointed or elected in at the same meeting?"

Normally, the VP steps into this role, becomes the President, and there becomes a vacancy in the VP slot. Follow rules in the bylaws for filling vacancies of officers. (another election or appointment , of the position is left vacant)

Joe said "and (the president would)recuse him/herself from any discussion or vote."

I'd double check on this. At the motion to remove, there would be debate. He certainly should get to defend himself!

Also, as a member, he still retains a right to vote!

Susan, I meant during the board meeting to consider the petition and set up the member's meeting. Of course, he can defend him/herslef, but in front of the voters. The board isn't considering to remove, only the petition for meeting to remove.

Joe

Are you removing him from the presidency? (In which he STILL gets a vote on that decision, as a member of the Board - AND then he still retains his general membership voting rights)

OR

are you removing him as a member? (In which he would have voting rights, and all others privleges removed.)

I understand,

He is being removed as President.

ChrisB4: This discussion has taken off on different tangents, and not exactly staying with the problem at hand. I want to caution you, Chris, to understand the process that must take place according to your documents, or if not clear, then you must refer to your state documents on "Removal". To remove a member-elected Board member from the Board is serious business and is to be handled correctly.

- If he was elected by members, the members must vote to remove him--the petition is a sign of 'some' members wanting him removed but you don't state it is the actual majority.

- You state the 'other' Board members were appointed by the President; does this mean they were NOT elected by members to the Board, OR, were they elected
by members and the President told them what role they would fill.

- Lastly, review your docs to learn if "a Board member may be removed without assigning any cause...". This means there needs to be no discussion or debate.

- Review to learn if the 'new' Director/Board member can be elected at the same meeting at which the one will be removed.

To answer your question on what is your role in this removal--I am not familiar with the removal of a B-member by the Board itself. My experience has been the members create the petition, present it to the Board, the meeting notice is sent, at the meeting the B-member states his resignation due to member majority signing a petition for removal, and a vote is taken to elect a 'new' B-member to fill the vacant seat. The new member takes effect immediately with a 'seat' on the Board--not necessarily in the office/role the removed person held. Usually, when 'new' Board members are elected, it changes the "pool of abilities", so roles are redistributed to suit the B-members. This is up to the Board, not the members to dictate who does what.

You have a difficult scenario ahead of you but if you take it one step at a time, and have the majority of the community behind you, it will work out. Don't forget to bring in the expertise of your Prop.Mgr. (if you have one) for this situation; they can offer their experience and knowledge from other communities having done the same thing.

Oh do you have your hands full!!! Document, Document, Document.

As suggested before, give them (President and Secretary)the opportunity to take the high road and step aside for the process to go forward by signing the "Conflict of Interest" memo. If they refuse to sign it, the Board still has the fiduciary responsibility to proceed. Look through your governing documents for the process and follow it. If you can identify who provided the recall petition, ask for a copy so you have your own documentation trail.

It seems this chain is going on a number of wild goose chases

Recall from Board or recall from position on Board - you clarified.

What part do the recalled parties have in the process - to defend, in a means established in the by-laws or by the board

If removed, they retain their voting rights - assumption is one per unit.

BUT NOW ANOTHER WILD GOOSE - Both Board members, President and Secretary are from the same unit? - Do they own more than one unit? (then ok), but if they own only one unit, it may be somewhat problematic.

WHAT DO YOU DO?
Questions: If the President refuses to do what is required of him, or he claims that the petitions submitted aren't valid and makes up a reason why, what is my responsibility as the VP, if any? Should the president and Secretary be allowed to be an active part of the process when there are petitions for their removal?

Answer: The parties subject to the recall have a clear conflict of interest. They can have no part of the process outlined in the by-laws other than to defend as defined at a meeting or in a ballot disclosure (suggest you limit the length of the defense - talk to an attorney) As the VP you now have the responsibility to enforce the governing documents.

Talk with your Community Manager or Attorney and/or Insurance Agent as the insurance agent will be able to help you identify the requirements of your D&O (Directors and Officers) Coverage. Additionally, the insurance agent may also tell you that the President and Secretary, by refusing to allow you to deal with this matter, which appears to be a conflict of interest, are acting willfully and maliciously. If it is determined the parties of the recall choose to control the recall, dispite reasonable request that they allow you to take the process forward, they may lose the right of the D&O insurance and any legal actions may subject them to pay for their own defense

Not a lawyer, not an insurance agent, just an educated Board member. You also fall under that D&O insurance. Get the support of your agent, and move forward with the process according to the governing documents.

Chris,
I would also go to your State HOA laws as I am sure there is wording in there on how to handle a recall of any directors. This is a part of doing a recall that must follow the State laws or statutes. This could have serious repercussions if your members just decide to do this because you generally feel like doing it or personalities are involved. The State will have guidelines to do this properly.

ChrisB4: In giving info 'piecemeal' it is difficult to grasp the entire situation you are facing. Therefore, I revisited your earlier posting on "Nepotism" and the Pres./Secy.(from one household) Board situation.

You really need to look at the whole picture here, and in doing so, post the actual situation because to not post what the particulars are is to give us only part of the problem. Is this recap correct?

- 2 seats on the Board are held by 1 household (Pres. & Secy.)
- 1 seat on the Board held by 'friend' of Pres./Secy.
- 2 remaining seats on the Board--you hold V.P. position
- Petition signed to request removal of Pres./Secy.

Questions you need to be concerned with at this point are:
- How many have signed the petition for removal?
- If you are working with a majority of member signatures, the Pres/Secy must defer to the members
- Is an election to be held for the 2 open seats on the 5 member Board

You stated earlier from your docs..."Special meetings of the members may be called at any time by the president or by the Board of Directors, or upon written request of the members who are entitled to vote one-fourth (1/4) of all of the votes of the membership..."

The above quote implies that the members can call a meeting provided that 1/4 of the entire membership makes a written request.... Does the petition ask for a meeting, and has 1/4 of the membership signed it? If so, that's fine but its not the MAJORITY needed to recall 2 Board members.

Can you clarify where the majority of members stand? and/or if you as VP stand with the minority of members.

Our By-Laws are pretty messed up, some of this is because our CC&Rs cannot be amended by law until 2013.

The petition rule in our community is 10 sigs to call a special meeting. When the By-Laws committee looked at this rule it was found that they could not raise the 10 sigs to something more reasonable. The solution was 10 sigs first meeting and 20% for any subsequent meetings. Since our quorum rule is 60% it has always taken more than 2 meetings to get a quorum. This means that members are unlikely to call a special meeting unless they think they can get 20%

To recap, the President was handed a petition with the required 10 sigs to call a meeting to consider his removal. If at that meeting we do not have quorum (221 out of 368) then the petitioner's will have to collect approx 72 more sigs to call a second meeting (this wont be a problem).

Am I working with the minority?

I am advising them on how to proceed within the confines of our By-Laws and State Law as I know it. I have made it clear that my position as VP prevents me from actively working against a Board member, but that I will provide any procedural help they need.

The upcoming election is for the Secretary and VP.

I have advised the homeowners that if they want to remove the Secretary that they should simply remove her via the election. They have decided to move forward with the petition anyway.

Your right about the majority needed, that will come at the meeting.

YES THE STORY THAT FOLLOWS IS TRUE!

I have read all these postings with urgency for myself and my association (I am on our board, and the secretary of that board). Our HOA Charter (governing documents) clearly states that the board of Directors only elect Officers, and are the only ones with the right to remove Officers and appoint and fill vacancies on our board of directors!

A few disgruntled members of our association have a petition signed by members (I have not yet received the original document)that was presented to the President after a board meeting was adjourned (no quorom present)requesting a special meeting of the members and ALL board members removal. Following his receipt of these papers the president of our HOA sent a post card (without discusion to the rest of the HOA board)...to all BOARD members resigning from his Presidency and the Board in accordance to the petition presented to him (not in accordance to the Charter, but the petition). He obviously felt intimidated, but that should not have excused his knowledge of our Charter.

Following the receipt of the Presidents post card, another board member, the asst. Treasurer sent his resignation to me stating "he does not care to be part of this, and does not want to tangle with this," and said, "he is tendering his resignation to the board," and presented it to me, the secretary of the board.

We are now with a board member (petitioner's supporter)whom is a member at large of the board, in possesion of the original documents and calling a special meeting of the members for removal of the board and the election of an interim commitee to operate the day to day business of the HOA. This person has sent members of the HOA notices of a planned special meeting of the members (dated for March 20, 2008). I know this because I received the notice by USPS yesterday, I was amazed, upset and repulsed.

I had sent a letter by USPS to the member petitioner for the original request petition on March 1, 2008 he had sent a copy to the HOA p.o. box that was received on the Thursday before the first of March. The petitioner has yet to respond to the letter from the board secretary. The member at large has said in her special meeting letter that she is complying with the requested timeline of the petition(no such requirement in our Charter).

So here in town, four board members(three current board members out of town, from the seven of nine remaining) are left. The Treasurer and myself have talked and agreed that the secretary must send a letter to the member at large that she does not have the authority to send notice to members and that she has no right to organize and operate on her own as the board. We have yet to receive the original petition or verify and validate the signatures and that it is signed by members (voluntary membership HOA). What a mess.

Any other positive and worded letter suggestions would be greatly appreciated by the two of us trying to maintain order and responsibility for ALL ouir members and our current board.

Thank you all for any input.

Chris, you have a difficult situation. The solution rests with the members of the association. If you can mobilize this apathetic group you can call a special meeting to vote on removal of these Board members. You appear to have the required info for calling such a meeting and are aware of the vote required; although the percentage posted looks way too high to me. One other aspect to review is your state's nonprofit act (if you are incorporated). Usually the procedures for removal of Board members are provided in this state law.

Thank you

I truly appreciate the ideas and replies. The remaining members of the board may or may not know of any of this unless they get their mail this week. Most of them do get it forwarded to them during our winter (October-end of April) to their locations down nearer the equator.

The problem that I am looking at now, is that I am sending this "member at large" a letter informing her that she is in violation of the Charter and/or that she has no "right" or "authority" to call a special meeting of the members. I will be sure to send a copy to all current board members, ensuring them that we are following our Charter. But she has already mailed this special meeting and it's request to ALL HOA members. What a nightmare to explain to the members after the fact.

I should mention, that with her letter to the members she also included mail in voting ballots required by our Charter for member meetings (oh yeah, she sent them with her letter to the membership, postage paid of course). Living large on the members dime, she thinks!

We are a small HOA with under 100 members, who needs this nonsense?