removal of our BOD

Hello. I need to clarify and get your approval of the. steps needed to remove our board of directors. We have a five member board elected with about 66 votes out of 231 h/o total over the years.
1)Our by-laws say you need a majority 50% plus 1 to vote them out, which would be a 117 votes. BUT- According to South Carolina law, you need at least one vote more to get them out than was used to get them in which would be 67 or more. Does that sound correct to you? A homeowner went around and got 70 people to vote to remove the board and call a special meeting for. a new election. These are not proxies. These are their votes in writing.
2) We need 10% petition to call a special meeting to remove the board. I've prepared a petition to get about 25 people to sign to hold ameeting within 10 days.

3) We need 51% quorum to vote the new board in, 118 votes by proxy or in person.
So in my mind, if 10 people show up at the meeting and the five board members are there, we already have 15 towards the quorum needed to vote.
and, if several people go around the community get 118 proxies, we have a quorum to vote in the new 5 member board in at the special meeting. Does that sound correct?

Last, I feel we have to give a copy of the petition to the President and to the management company to call the "Special" meeting within 10 days, but we don't have to give them the votes to vote them out or the proxies until the night of the meeting.
Does that all sound correct to you?

Lynne

A recall can get legally tricky if anyone being recalled decides to legally fight it. Also one dissident can drag things on and on. My adice is:

1. If you want to go the recall route, hire a lawyer to support you.

2. Do not go the recall route and wait until annual elections and replace existing BOD at that time.

In one SC association I was a member of we put together a group dedicated to replacing several BOD Members. It was a lot of hard work by a handful of us. It took us two election cycles but we replaced 5 of 7.

Article 2. Section 11. "Quorum. Except as otherwise provided in these bylaws or in the Declaration the presence in person or by alternate of the voting members representing 51% of the total vote of the association, shall constitute a quorum at all meetings of the association."

Section 7. Adjournment of meetings. If any meetings of the association cannot be held because a quorum is not present, a majority of the voting members who are present at such meeting either in person or by alternate, may adjourn the meeting to a time not more than 30 days from the present time the original meeting was called. At the reconvened meeting, if a quorum is present, any business which might have been transacted at the meeting originally called may be transacted. The required quorum at the reconvened meeting shall be one-half of the required quorum at the preceding meeting.

Article 3. Section 7. Removal of directors and vacancies.
Directors may be removed with or without cause by a majority of the vote of the Class A (the builders) and Class B (the homeowners) voting members. Any director whose removal is sought will be given notice prior to any meeting called for that purpose Upon removal of a director, a successor
shall then and there be elected to fill the vacancy by the voting members responsible for such removal.

Article 3. Special meetings. ... The notice shall specify the time and place of the meeting and the nature of business to be considered. The notice shall be given to each director by 1 of the following methods. (a) personal delivery (b) written notice by first class mail, postage prepaid (c) telephone to either the director or to a person at the director's home or office who would reasonably be expected to communicate such notice to the director, (d) by telegram.
All such notices should be deposited into a US mailbox at least four days before the time set for the meeting. Notices given in person or by phone, should be at least seventy-two hours before the meeting.

Article2 . Section 4 special meetings. The president may call special meetings. In addition, it shall be the duty of the president to call a special meeting of the association. If so directed by resolution of a majority of a quorum of the board of directors, or upon a petition signed by voting members who represent at least ten percent (10%) of the total membership of the association. The notice of any special meeting shall state the date, the time and the place of such meeting and the purpose thereof. No business shall be transacted at a special meeting, except as stated in the notice.

I expect that article 3 applies to special meetings of the board, not of the membership.

Keep in mind, regardless of what the bylaws say, corporate statutes must also be complied with.

Per SECTION 33-31-702. Special meetings:

(b) The close of business on the thirtieth day before delivery of the demand or demands for a special meeting to any corporate officer is the record date for the purpose of determining whether the five percent requirement of subsection (a) has been met.

(c) If a notice for a special meeting demanded under subsection (a)(2) is not given pursuant to Section 33-31-705 within thirty days after the date the written demand or demands are delivered to a corporate officer, regardless of the requirements of subsection (d), a person signing the demand or demands may set the time and place of the meeting and give notice pursuant to Section 33-31-705.

Per SECTION 33-31-705. Notice of meeting.

(a) A corporation shall give notice consistent with its bylaws of meetings of members in a fair and reasonable manner.

(b) Any notice that conforms to the requirements of subsection (c) is fair and reasonable, but other means of giving notice also may be fair and reasonable when all the circumstances are considered. However, notice of matters referred to in subsection (c)(2) must be given as provided in subsection (c).

(c) Notice is fair and reasonable if:

(1) the corporation notifies its members of the place, date, and time of each annual, regular, and special meeting of members no fewer than ten or if notice is mailed by other than first class or registered mail, thirty, nor more than sixty days before the meeting date;

(2) notice of an annual or regular meeting includes a description of any matter that must be approved by the members under Section 33-31-831, 33-31-856, 33-31-1003, 33-31-1021, 33-31-1104, 33-31-1202, 33-31-1401, or 33-31-1402; and

(3) notice of a special meeting includes a description of the matter for which the meeting is called.

Again, expecting the board to call a special meeting 10 days after they receive the petition is simply not reasonable.
Statute indicates this as it specifies that boards must provide notice within 30 days after receipt of the petition.

The time frame is flexible I'm concerned about the procedures. Also, I forgot to mention :
Section 9 Proxies. Voting members may vote in person or by proxy.

I wasn't sure if we chose the special meeting date or if the president sets the date.
There are five board members, and there are three openings in October. There'll be another 2 next year.
We have issues with our finances. We haven't had an accountant audit /look at our books in over 10 years. Our reserves went from $46,000 to $1500. They forgot to pay the real estate taxes. in 2022. I reminded them three months later. And now they forgot to pay them. They were due in December 2023. Our common property areas are in default now (over 90 days late), and will go into County auction this fall, if I don't remind them again.
They missed paying our garbage collectors January and February this year for the second time.
Several of us had made appointments to see the Check Register, or the bank statements, or the election results, and when we get there, they say no at the management company.
Our ponds only get maintained with chemicals twice a year instead of monthly, but we pay the pond guy monthly. There's a lack of concern and consideration on the part of the board and after them being on for 7 1/2 years, it's time for a change. They don't even have signature authority on our checking accounts, nor do they know what bank our money is in when asked at meetings.
The president said last year he was going to stop enforcing parking regulations of trucks, motorcycles and campers in the community. He no longer cares about that. When did he become king? It is all totally appalling.

Thank you, JohnC46. Thank you all. Just reading TimB's reply, my brain exploded. I know our bylaws and covenants pretty well I'm not familiar with the SC state laws. I have no problem waiting till October and trying to get three new people on the board. I would just like access to the bank statements for the last year to see where our money has gone.
Our election last October was a travesty. They demanded all proxies be submitted two days early. And at the election meeting, they decided not to count 30 proxies and would not explain whose was not counted, or why they were not counted. With the disqualifying of 30 proxies (all voting for the new person), the board-favored incumbent won. She resigned one month later and was replaced with another friend of theirs. Another board member resigned the next day and was replaced with a board member's friend.
At this rate, I don't see how any new people get on the board. They always pick somebody between meetings and announce at the next meeting that the person was replaced.

We are a POA with 231 privately owned homes. Our only common area is six ponds with 14 fountains that we maintain.
If we change the petition to just remove the President and not the whole board that might make things easier. The others are all appointed members at this point. They may want to stay. They may not. They may be great people.
Funny, an email just came out this afternoon saying that we spent $70,000 on our ponds in the last three years trying to stop erosion on the hills. They put in cora logs along the base water line. But they dissolved within two years, so they are all gone. Neither the president nor any board oversaw the projects, they gave the pond company man free reign to do what yards where and when he wanted. He put French strains in each of the board members' backyard. There are no bills and no receipts for any of this work.
I state all of that to clarify that we are justified in our concern.
It doesn't seem fair that they control the voting rules at each election and they get to hire a lawyer and 4 of us have to spend our own money to remove them.

If there are no bills or receipts for the French drains then how do you know the HOA paid for them? Could it be the people happened to be board members and hired the same contractor the HOA used?

Unless your bylaws are highly unusual --

-- You do understand that the officers (President, VP, Secretary, Treasurer etc.) are elected by the board and not the owners, correct?

-- You do understand that the owners can remove a director, but they cannot select the officers, correct?

According to your bylaws, does the person who is selected as President //have to be// a director? Or can the President by a non-director?

Like others said, I think you are better off putting your energy into electing new board members at the regular annual election. My sense is your group will make mistakes during the recall. The board has no obligation to tell your group how to get things right. The board can simply refuse to abide by the recall, because they believe xyz was done not in accordance with the law or bylaws.

Our homes are on lots that slant towards the pond and towards the side of each others yard. And the water drains between the yards towards the pond. There's only about six homes that have French drains in the whole community, and they're all the current and 2 past board members.
Yes, we vote for directors. They vote for their positions. Their terms are staggered.
I'm just asking you the procedures- step by step.

1st- If we get a petition with over 10% signatures, and we give it to the president to set up a special meeting - say within "30 days", Does he pick the date? I asked this specifically because two people spoke with a lawyer last week and he said when you hand in the petition, it needs a date on it and an address for the special meeting. And he said the proxies have to have the meeting date on it. But if we give the petition to the President and he chooses a date, say within 30 days, how could it already be on the petition or the proxy?? We want to start getting some proxies Do they need the exact. date of the meeting on the proxies? Or can it be an "on or about May 8th type date?

did not read all posts, but you might have better luck calling an online election at the meeting if legal in SC to give you time to get people to vote. getting 120 proxies is hard work.
you can use roberts rules of order to call for a new chairman at the special meeting so the current president is not dictating the agenda.

Our Bylaws say:

Section 4. Special Meetings. The President may call special meetings. In addition, it shall be the duty of the President to call a special meeting of the Association if so directed by resolution of a majority of a quorum of the Board of Directors or upon a petition signed by Voting Members representing at least ten (10%) percent of the total votes of the Association. The notice of any special meeting shall state the date, time, and place of such meeting and the purpose thereof. No business shall be transacted at a special meeting except as stated in the notice.

Section 5. Notice of Meetings. Written or printed notice stating the place, day, and hour of any meeting of the Voting Members shall be delivered either personally or by mail, to each Voting Member entitled to vote at such meeting, not less than ten (10) nor more than fifty (50) days before the date of such meeting, by or at the direction of the President or the Secretary or the officers or persons calling the meeting.

I summarize this to say it is the responsibility of the BOD to notify owners at least 10 days but nor more then 50 days prior to a Special Meeting along with the reason for the meeting such as replace BOD Director Bob Smith with Sue White.

Thank you all. Thank you, JohnC46, Thank you Kerry. you are correct, the management company said put it in writing- I had to get the form. They wouldn't email it to me. They will get back to me with their decision.
Yes, Kerry, the last election all the proxies had to be in two days before - there were two people running. The one guy drove down there with 24 proxies they said he can't submit proxies that had his name as proxy on it. So I had to drive down there and submit those proxies which were dropped at his home by random h/o. At the election meeting they would not count those proxies or 6 brought in by another man that evening -and would not explain why.
Anyhow, I think I now understand what that lawyer meant. The petition we give to the president doesn't need a meeting date on it--the notice the hoa president mails out "has to have a date and meeting place on it".
since I prefer just removing one person, not 5, I may let the other go on without me. But thank you. I will give all your information to the others and let you know what eventually happens.
And boy, I wish we could do elections online, and that we had a lower quorum.
Your website is such a help to so many homeowners- thank you.

Lynne

I say the owners can ask who they want to intend a Special Meeting and this includes who they do not want to attend such as the PMC.

1)Who calls the meeting to order? Since we H/O want 5 new board members and are removing the old board members. Do we get to call the meeting to order and control the floor? Last time I set up a special meeting to discuss changing our inefficient management company. The board Pres. told me to get off the chair at the front table, sit down with the other members and shut up, and they didn't let me explain my views. He read my petition letter, but that was it.

We would like to get the floor to state our views and that we're going to try to bring in a quorum of proxies to remove the board and replace them that night.

2) I also would like the option if we have enough to remove the board, which is one more vote than it took for them to get in, in South Carolina -- But we don't have the 51% quorum for a new board, can we adjourn for coffee break and reconvene in 15 minutes to use the half quorum as stated in our by-laws. The HOA board is elected with the 1/2 quorum rule every year since 2007. If they control the meeting, they may not let us adjourn and reconvene.

Assuming SC and perhaps the OP’s Bylaws too require Robert’s Rules as a members meeting, the board president calls the meeting to order. But then, as Wendy maintains, an owner makes a motion to nominate xx as meeting chair,it’s 2ndted and the “assembly,” all owners in this case, vote for a presider.

But… how does Lynn keep the current prez/board from
bullying them again???

I agree, with the caveat that owners cannot exclude a fellow owner.

I agree. Directors do not have some kind of unique right to speak at a meeting of the owners (which a special meeting of the members is). Directors get to speak in their capacity as owners //if and when// the chair recognizes the director.

It sounds like cheating.

You did not answer my earlier question about whether your HOA uses cumulative voting. The answer to this question is key to answering your other questions.

Ellenh - I was confused by the term 'cumulative voting'. I thought about your question last night. We have five board members: 2 with 3-year terms. Two, with 2-year terms and one with a 1-yr.term.
If we get enough proxies to vote them out and us in, there will be an election in October with three vacancies (1yr. term and 2 2-yr terms). Next year, there'll be another election with three vacancies also the 2 3yr terms and the 1 yr term will be up.)

To answer JohnC46 - We will distribute proxies to everyone in the HOA which states that it is for the special meeting in May- the vote to remove the current board; Quorum purposes; and the election of the new boar and reconvened meetings for that purpose.

LynneV1, "cumulative voting" means that, when five board seats are open, owner Jane Doe is allowed to cast up to five votes in any way she wants. Jane may choose to give all five of her votes to Candidate X. Or she may choose to give three votes to Candidate Y and two votes to Candidate Z. The SC Nonprofit Corporation Act speaks of this. I will say more once you answer this question:

Do your bylaws or articles of incorporation permit "cumulative voting"?

One other thing, meant with respect, somehow:
Communicating what is so frequently, highly complicated legal information,, in a format like that of this forum, is difficult, even if a person is an excellent, logical writer. For what it is worth, whenever you are not sure of someone's meaning, consider asking them to elaborate on whatever it is that does not make sense.

Then by my reading of the SC Nonprofit Corp Act section 33-31-808, this does not sound at all correct:

231 h/o x 51% = 118 votes needed in my POA to be elected...but we never get that many votes in person or proxies submitted, so we have always adjourned and reconvened usually on the same election night.
The most votes anyone on that current board received was 66 votes. Why wouldn't 33 -31-808(c) apply --meaning -we need one more to get them out than it took to vote them onto the BOD either 1yr or more?

Also of the directors were not elected by members but were just recently appointed by the other current directors.

LynneV1, you posted:A little while ago you cited SC statute yada section 33-31-808(c) for this. The relevant part of this section says:

... a director may be removed under subsection (a) or (b) only if the number of votes cast to remove the director would be sufficient to elect the director at a meeting to elect directors

This is not saying what you think it is saying.

Review:

231 owners

Per the bylaws, attendance in person or by proxy of at least 51% (= 118 owners) represents a quorum, and the recall can continue.

Per the bylaws, removal can occur only via a "majority of the vote of the owners..." Reading the sections of the bylaws you quoted verbatim, this means at least 116 affirmative votes are needed to remove a director. (Your 50%+1 vote = 117 is incorrect applied math.) The bar for removal is set high. I do not think this is unusual. It promotes some stability.

SECTION 33-31-808 (c) says in part: "a director may be removed under subsection (a) or (b) only if the number of votes cast to remove the director would be sufficient to elect the director at a meeting to elect directors." Once quorum is met, I presume a plurality of those owners present in person or by proxy can elect directors. Right? If I am correct, then quorum = 118 owners. Once quorum is met, the number of votes to win election just depends. Would the Bylaw minimum of 116 votes for removal be sufficient to elect a candidate at a regular election? Absolutely.

You anticipate not meeting quorum. Per the bylaws, the meeting may be adjourned to a later date, whence I believe notice must be provided to all owners, and then on this later date, and per the bylaws, the new quorum number is now 51% / 2 = 25.5% = a minimum of 59 owners for quorum to be met on this later date. However at least 116 votes are still needed for removal. A plurality is needed to win election to office subsequently.

I have every confidence mistakes will be made at this owners' meeting.

Either people will agree on the outcome (with mistakes) or they will not.

Or your group simply will not get 116 votes.

Easier to call the meeting with 10% and then give them 2 months to vote online to elect a new board. NC allows that, not sure if SC does. Just be sure not to mix in person ballots with online ballots, that is against the law because they are technically 2 different meetings.