RECALL

VERY SIMPLY...Can the membership of an Association recall a member of an HOA board that was appointed by the board?

It all depends upon what your gov. docs. and/or state law say. In AZ an appointed director can only be removed, with or without cause, by the person appointing him. Written notice must be given to the director and the BOD.

I was under the impression that an officer of a Board or a member of a board can only be removed by what entity that placed them their.

Since LA doesn't have much in HOA law, look to your documents first, then to the state's corporate law, if your association is incorporated. Generally, the board can remove any officer not elected by the owners, but only the owners can remove a board member once elected. Of course none of this holds true while the developer controls the association. If the person on the board you wish to remove was appointed to fill an unexpired term of a board member who resigned or left, then check the corporate law carefully, because I think it would take a vote of the owners to remove that person.

Mary, we may be confusing director and officer. IN AZ, I understand the board can remove an appointed officer, but can they remove an appointed board member (director) who was appointed to fill an unexpired term? Or do they have to use the recall?

Joe

Mary - I don't get your reasoning.

The way you have worded this, the General Membership could recall the entire board EXCEPT the ones that were appointed by the Board.

I still go back to my original position that the General Membership can recall Board members (directors). All officers are Board members. HOW they got there is not the issue. Once in, that person is a director and has the same rights, responsbilities and role as any other one. There are no "classes" of Board members.

Am I missing something here?

Mary - I don't get your reasoning.

The way you have worded this, the General Membership could recall the entire board EXCEPT the ones that were appointed by the Board.

I still go back to my original position that the General Membership can recall Board members (directors). All officers are Board members. HOW they got there is not the issue. Once in, that person is a director and has the same rights, responsbilities and role as any other one. There are no "classes" of Board members.

Am I missing something here?

Susan,

Yes, what you're missing is that fact that I've stated AZ law. Whether I like the law or not that's the way it is here. If a board member is appointed he can only be removed by the person who appointed him. You cannot recall someone you did not elect! Perhaps in MI you can, but not in AZ. And, in LA anything goes because the HOA laws are very slim. If the gov. docs are silent on the issue then I guess the board can do whatever they wish!

Mary W,

I presume you mean he was voted on by the members, not approved.

Copied below is the statute you must follow. This is the planned community statute. If you live in a condo, ARS 33-1243 applies but it reads the same.

33-1813. Removal of board member; special meeting

A. Notwithstanding any provision of the declaration or bylaws to the contrary, the members, by a majority vote of members entitled to vote and voting on the matter at a meeting of the members called pursuant to this section at which a quorum is present, may remove any member of the board of directors with or without cause, other than a member appointed by the declarant. For purposes of calling for removal of a member of the board of directors, other than a member appointed by the declarant, the following apply:

1. In an association with one thousand or fewer members, on receipt of a petition that calls for removal of a member of the board of directors and that is signed by the number of persons who are entitled to cast at least twenty-five per cent of the votes in the association or one hundred votes in the association, whichever is less, the board shall call and provide written notice of a special meeting of the association as prescribed by section 33-1804, subsection B.

2. Notwithstanding section 33-1804, subsection B, in an association with more than one thousand members, on receipt of a petition that calls for removal of a member of the board of directors and that is signed by the number of persons who are entitled to cast at least ten per cent of the votes in the association or one thousand votes in the association, whichever is less, the board shall call and provide written notice of a special meeting of the association. The board shall provide written notice of a special meeting as prescribed by section 33-1804, subsection B.

3. The special meeting shall be called, noticed and held within thirty days after receipt of the petition.

4. For purposes of a special meeting called pursuant to this subsection, a quorum is present if the number of owners to whom at least twenty per cent of the votes or one thousand votes, whichever is less, are allocated is present at the meeting in person or as otherwise permitted by law.

5. If a civil action is filed regarding the removal of a board member, the prevailing party in the civil action shall be awarded its reasonable attorney fees and costs.

6. The board of directors shall retain all documents and other records relating to the proposed removal of the member of the board of directors for at least one year after the date of the special meeting and shall permit members to inspect those documents and records pursuant to section 33-1805.

7. A petition that calls for the removal of the same member of the board of directors shall not be submitted more than once during each term of office for that member.

B. For an association in which board members are elected from separately designated voting districts, a member of the board of directors, other than a member appointed by the declarant, may be removed only by a vote of the members from that voting district, and only the members from that voting district are eligible to vote on the matter or be counted for purposes of determining a quorum.

MaryA1...
WOW! You had me so interested in your recall process in Arizona that I took a looksee at your statutes to see how they differ from Florida's
I noticed the following and in my non-legal look at it. It appears that if a director is elected by the membership, resigns and the board appoints a replacement to fill the term, this (appointed) replacement director can only be recalled by the membership who elected the original director and not the board.
Am I reading this right? Perhaps I'm in the wrong section?

Ann
........................Title 10 - Corporations and Associations .......
Chapter 31 DIRECTORS AND OFFICERS-NONPROFIT CORPORATIONS
10-3808. Removal of directors elected by members or directors

C. Notwithstanding subsection B, paragraph 8, a director elected by the board to fill the vacancy of a director elected by the members may be removed with or without cause by the members, but not by the board of directors.
......................

Subsection B, paragraph 8
8. Except as provided in subsection C, a director elected by the board may be removed with or without cause by the vote of two-thirds of the directors then in office or any greater number as is set forth in the articles of incorporation or bylaws.

Mary with all due respect and I am by no means an expert in AZ HOA matters but I believe the appointed director you reference in ARS 10-3809 is a Declarant appointed director not someone the BOD elects/appoints to fill a vacant spot. If it applies to an HOA at all. I thought that was Title 33 but if you go with Title 10 look at 10-3808 section C.

10-3808. Removal of directors elected by members or directors
A. A director may be removed from office pursuant to any procedure provided in the articles of incorporation or bylaws.
B. If the articles of incorporation or bylaws do not provide a procedure for removal of a director from office:
1. The members may remove one or more directors elected by them with or without cause unless the articles of incorporation provide that directors may be removed only for cause.
2. If a director is elected by a class, chapter, region or other organizational or geographic unit or grouping only the members of that class, chapter, region, unit or grouping may participate in the vote to remove the director.
3. Except as provided in paragraph 9, a director may be removed under paragraph 1 or 2 only if the number of votes cast to remove the director would be sufficient to elect the director at a meeting to elect directors.
4. If cumulative voting is authorized, a director may not be removed if the number of votes, or if the director was elected by a class, chapter, region, unit or grouping of members, the number of votes of that class, chapter, region, unit or grouping, sufficient to elect the director under cumulative voting is voted against the director's removal.
5. A director elected by members may be removed by the members at a meeting by written consent or by written ballot of the members authorized to vote on such removal. If the removal is to occur at a meeting, the meeting notice shall state that the purpose or one of the purposes of the meeting is removal of the director.
6. In computing whether a director is protected from removal under paragraphs 2 through 4, it is assumed that the votes against removal are cast in an election for the number of directors of the class to which the director to be removed belonged on the date of that director's election.
7. An entire board of directors may be removed under paragraphs 1 through 5.
8. Except as provided in subsection C, a director elected by the board may be removed with or without cause by the vote of two-thirds of the directors then in office or any greater number as is set forth in the articles of incorporation or bylaws.
9. If, at the beginning of a director's term on the board of directors, the articles of incorporation or bylaws provide that the director may be removed for missing a specified number of meetings of the board of directors, the board of directors may remove the director for failing to attend the specified number of meetings. The director may be removed only if a majority of the directors then in office vote for the removal.
C. Notwithstanding subsection B, paragraph 8, a director elected by the board to fill the vacancy of a director elected by the members may be removed with or without cause by the members, but not by the board of directors.

Glen,

In answer to your remark: "If the member was appointed by the BOD to fill someone's place that appointed member could be recalled the same as any other member."

This remark was made after reading the Title 33 recall statute: 33-1813. It appears that way, IF you don't look at the Title 10 statutes. This is a classic example of a legislator writing a bill and not taking into consideration other laws that may apply. This is another statute the HOA attorneys would call the "HOA attorney enabling act" -- a common phrase around here.

Harold,

Quite frankly, the thread wasn't about recall so I didn't think of that statute until later when I responded to Glen.

But, why are you so bent on picking apart all my responses? Why don't you just state your opinion, which is what I've done. We're all entitled to interpret however we wish and we're not always going to agree on the interpretation. This is not a site where anyone is expecting legal advice.