Clarification - FL Statute 720.303 - Recall of Director

Bill,

What do your Association bylaws say about recalling a director?

Tim

Bill as I understand it (not a lawyer) you can either hold a vote to recall or you can do it by petition:

Should Joe Blow be recalled as a Board Trustee and Jane Doe elected in his place?

Yes____ No____ Signature and address of lot owner_________________________________

As to how to stop it you can gather a written rescission or revocation of a member's written recall ballot see number 4.

(10) RECALL OF DIRECTORS.--

(a)1. Regardless of any provision to the contrary contained in the governing documents, subject to the provisions of s. 720.307 regarding transition of association control, any member of the board of directors may be recalled and removed from office with or without cause by a majority of the total voting interests.

2. When the governing documents, including the declaration, articles of incorporation, or bylaws, provide that only a specific class of members is entitled to elect a board director or directors, only that class of members may vote to recall those board directors so elected.

(b)1. Board directors may be recalled by an agreement in writing or by written ballot without a membership meeting. The agreement in writing or the written ballots, or a copy thereof, shall be served on the association by certified mail or by personal service in the manner authorized by chapter 48 and the Florida Rules of Civil Procedure.

2. The board shall duly notice and hold a meeting of the board within 5 full business days after receipt of the agreement in writing or written ballots. At the meeting, the board shall either certify the written ballots or written agreement to recall a director or directors of the board, in which case such director or directors shall be recalled effective immediately and shall turn over to the board within 5 full business days any and all records and property of the association in their possession, or proceed as described in paragraph (d).

3. When it is determined by the department pursuant to binding arbitration proceedings that an initial recall effort was defective, written recall agreements or written ballots used in the first recall effort and not found to be defective may be reused in one subsequent recall effort. However, in no event is a written agreement or written ballot valid for more than 120 days after it has been signed by the member.

4. Any rescission or revocation of a member's written recall ballot or agreement must be in writing and, in order to be effective, must be delivered to the association before the association is served with the written recall agreements or ballots.

5. The agreement in writing or ballot shall list at least as many possible replacement directors as there are directors subject to the recall, when at least a majority of the board is sought to be recalled; the person executing the recall instrument may vote for as many replacement candidates as there are directors subject to the recall.

(c)1. If the declaration, articles of incorporation, or bylaws specifically provide, the members may also recall and remove a board director or directors by a vote taken at a meeting. If so provided in the governing documents, a special meeting of the members to recall a director or directors of the board of administration may be called by 10 percent of the voting interests giving notice of the meeting as required for a meeting of members, and the notice shall state the purpose of the meeting. Electronic transmission may not be used as a method of giving notice of a meeting called in whole or in part for this purpose.

2. The board shall duly notice and hold a board meeting within 5 full business days after the adjournment of the member meeting to recall one or more directors. At the meeting, the board shall certify the recall, in which case such member or members shall be recalled effective immediately and shall turn over to the board within 5 full business days any and all records and property of the association in their possession, or shall proceed as set forth in subparagraph (d).

(d) If the board determines not to certify the written agreement or written ballots to recall a director or directors of the board or does not certify the recall by a vote at a meeting, the board shall, within 5 full business days after the meeting, file with the department a petition for binding arbitration pursuant to the applicable procedures in ss. 718.112(2)(j) and 718.1255 and the rules adopted thereunder. For the purposes of this section, the members who voted at the meeting or who executed the agreement in writing shall constitute one party under the petition for arbitration. If the arbitrator certifies the recall as to any director or directors of the board, the recall will be effective upon mailing of the final order of arbitration to the association. The director or directors so recalled shall deliver to the board any and all records of the association in their possession within 5 full business days after the effective date of the recall.

(e) If a vacancy occurs on the board as a result of a recall and less than a majority of the board directors are removed, the vacancy may be filled by the affirmative vote of a majority of the remaining directors, notwithstanding any provision to the contrary contained in this subsection or in the association documents. If vacancies occur on the board as a result of a recall and a majority or more of the board directors are removed, the vacancies shall be filled by members voting in favor of the recall; if removal is at a meeting, any vacancies shall be filled by the members at the meeting. If the recall occurred by agreement in writing or by written ballot, members may vote for replacement directors in the same instrument in accordance with procedural rules adopted by the division, which rules need not be consistent with this subsection.

(f) If the board fails to duly notice and hold a board meeting within 5 full business days after service of an agreement in writing or within 5 full business days after the adjournment of the member recall meeting, the recall shall be deemed effective and the board directors so recalled shall immediately turn over to the board all records and property of the association.

(g) If a director who is removed fails to relinquish his or her office or turn over records as required under this section, the circuit court in the county where the association maintains its principal office may, upon the petition of the association, summarily order the director to relinquish his or her office and turn over all association records upon application of the association.

(h) The minutes of the board meeting at which the board decides whether to certify the recall are an official association record. The minutes must record the date and time of the meeting, the decision of the board, and the vote count taken on each board member subject to the recall. In addition, when the board decides not to certify the recall, as to each vote rejected, the minutes must identify the parcel number and the specific reason for each such rejection.

(i) When the recall of more than one board director is sought, the written agreement, ballot, or vote at a meeting shall provide for a separate vote for each board director sought to be recalled.

Hi Donna - I was hoping you would weigh in on this. However, my question still is...does a door to door solicitation of homeowner names saying "yes" constitute a recall or does the full membership need to be solicited via an official ballot. We have homeowners who have no clue this is happening.

Bill,

Have you read the Statute?

(b)1. Board directors may be recalled by an agreement in writing or by written ballot without a membership meeting. The agreement in writing or the written ballots, or a copy thereof, shall be served on the association by certified mail or by personal service in the manner authorized by chapter 48 and the Florida Rules of Civil Procedure.

2. The board shall duly notice and hold a meeting of the board within 5 full business days after receipt of the agreement in writing or written ballots. At the meeting, the board shall either certify the written ballots or written agreement to recall a director or directors of the board, in which case such director or directors shall be recalled effective immediately and shall turn over to the board within 5 full business days any and all records and property of the association in their possession, or proceed as described in paragraph (d).

An "agreement in writing" would include a clearly worded petition.

SureshD,

An "agreement in writing" is not the same as a petition. A petition makes a formal request and an agreement in writing states an action that is to be taken.

Petition: "The following members of XYZ HOA do hereby petition the BOD to call a special meeting of the members for the purpose of recalling board member Joe Blow." The petition is signed by each member so making the request.

Agreement in Writing: "The following members of XYZ HOA do hereby agree to the recall of board member Joe Blow." The agreement in writing is signed by each member agreeing to the recall.

Sorry Mary I disagree. Your being too strick in your interpretation of a petition. It is all in the wording of the document.

From dictionary.com:

1.a formally drawn request, often bearing the names of a number of those making the request, that is addressed to a person or group of persons in authority or power, soliciting some favor, right, mercy, or other benefit: a petition for clemency; a petition for the repeal of an unfair law.
2.a request made for something desired, esp. a respectful or humble request, as to a superior or to one of those in authority; a supplication or prayer: a petition for aid; a petition to God for courage and strength.
3.something that is sought by request or entreaty: to receive one's full petition.
4.Law. an application for a court order or for some judicial action.

Thus you are requesting the recall as provided by law via petition. It must still be certified and may even be challenged so it is actuall a request.

As far a selectively canvassaing the membership... as others have suggestedI you could stop as soon as you receive a majority who will commit.

Obviously the more you have after is better insurance against votes possibly being pursuaded to change thier mind.

Please provide a link or something meaningful indicating a petition is not an "agreement in writing".

SureshD,

You did it yourself by posting this definition of a petition:

"From dictionary.com:

1.a formally drawn request, often bearing the names of a number of those making the request, that is addressed to a person or group of persons in authority or power, soliciting some favor, right, mercy, or other benefit: a petition for clemency; a petition for the repeal of an unfair law.
2.a request made for something desired, esp. a respectful or humble request, as to a superior or to one of those in authority; a supplication or prayer: a petition for aid; a petition to God for courage and strength.
3.something that is sought by request or entreaty: to receive one's full petition.
4.Law. an application for a court order or for some judicial action."

Note the word "request" is mentioned in each definition. An agreement in writing is a document that may be used in lieu of a ballot. In other words it is actually an affirmation of an action taken by the members.

I agree the petition does not have to circulated among all the members of the assn. Once the required % have been obtained + a few more signatures -- just in case some are found to be illegal the process may be stopped. However the notice of the meeting to vote on the item being petitioned for MUST be sent to all members of the assn. Or if an agreement in writing is being used it must be circulated or mailed to each member of the assn.

Mary,
That's what I thought I said. Obviously I wasn't clear, so I am glad you made the observation.
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. Hopefully, it will go smooth, it should, the documents seem direct enough, get the signatures, the board has to notice the meeting, have the meeting, validate the signatures, motion the recall...done deal, everyone turn over records, etc in five days.
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This above means to me, the interested owners have to collect the signature, the board has to notice the meeting; the board has to hold the meeting (if you remember this is what seems to prevail about a special meeting); the board has to validate the signatures; the board has to accept (or deny, this bothers me) the motion to complete the recall; the board has to announce the recall procedures, and all records are turned over in five days.
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The intent of my post was to see if they could get the process moving forward and resolve what ever is going on and move on.

Sam,

Thanks--you spelled it out and is simple and clear. The petition can be on toilet paper if need be but it must be presented to the Board by certified mail. It is after the Board receives the petition that things can get complicated if the Board fails to reccognize the petition for recall. And don't forget, the Statutes says "with or without reason"

Now, should the people who are circulating the petition, seek every members signature? I guess that it would be the correct thing to do but it is not required.

Daniel,
I can see your concern, the integrity of the Board is very important. There just has to be a value judgement about the offensive conduct.

I think it is Glen that always quotes something like: "The root to evil is for good people to do nothing."

We have to assume for the most part that the poster has read and understands the consequences and validity of their actions, we can't presuppose the poster is trying to sabotage the Board.

It is not uncommon for Board members to disagree.........strongly!

Bill,
Since you were the original poster and your intent is to stop the process, I apologize for not making this distinction. The fact hold good for you as well, we have to assume your motives are pure and above board. Since the other board member that wants the recall hasn't posted, we have to take no position on this with the knowledge we have. My intent was to move the process forward in what ever fashion is dictated under the documents. Hopefully it will be short and you may consider letting the process continue. The benefits of this, if you are backing the right horse are obvious.

Danial,
I'm not sure what you disagree with completely. You draw a scenario, set the parameters, establish a cast of bad guys and say that should not be allowed to happen. I certainly agree that under the conditions you present it is not hard to tell the white hats from the black hats.

So, you all have to be the ones to make the decision, that seems clear to me. My interest is, however this develops, and not to cast stones since I don't know, the picture as painted needs to get resolved as quickly as possible, for the good of the association.

It is always helpful to remember that the Board does not serve the owners primarily, they serve the association, it is not democratic rule. The only difference between the Board and the non Board members is that the owners elect the members of the Board. They are both under the same mandate to serve the association. The Board is not charged to make decisions for the operation, they are charged with making good decisions for the health of the association. If your documents called for a 2/3 plurality to change assessments, would the board allow a change at a 51 % plurality?

Of course Daniel, this is my opinion, you can make of it what you will. Is it RIGHT-RIGHT? I doubt it, but it's a pretty good place to operate from.........for me.

I am not sure why you would think that being on the Board negates or replaces your obligation as a owner and member of the association. In fact, you seem to be saying, in a way, that the members are free to act with the authority of the documents but the Board must operate at some lower level. If a member has the authority to process a recall, why would you exclude that authority from a Board Member. I don't want to put words in your mouth, but if this was an owner wanting the recall, you would resist any way you could, and as far as I can see would have authority under your Board position and your membership. Wearing either hat you feel this petition (sic) is wrong (read unhealthy for the association).

How do you certify HOA members signatures on a recall petition when you suspect some members signed their name to a document they thought was something all together different? Do you contact each member whose signature that appears on the petition and verify that they sitned the petition and what was the subject of the petition they signed?

John,

If the BOD suspects some wrong doing, then I suppose they could do as you suggest. I doubt there is anything in your gov docs or state law that would prevent it. Is there more than one petition being circulated in your HOA?

In Florida, you [the owners, the voting interests], can recall any director regardless of how they were installed.

What the sentence is saying is if you do not have voting rights for elections you do not have voting rights for a recall (either).

It is NOT saying: "only duly-elected directors can be recalled".

Correct.

The BoD can only remove the director from a position (i.e. Secretary, Pres. V.Pres, etc) not from the BoD.

The membership giveth and the membership taketh away!

Also the old wording in 617.0808 (which would allow the Directors to remove a director they'd appointed) although that no longer applies to HOA's

Not sure about Colorado...

Currently, in Florida, the HOA statutes make no distinction among BoD members as to how they were installed in the context of a recall.

Basically in 2011...
>The BoD has no soverign recall power/authority... can only strip an Officer position.
>The voting interests/members/homeowners can, by a simple majority (50% +1), at ANY time recall ANY BoD member for ANY or NO reason (cause).

I started worrying if our Bylaws agree with Calif. Corporations code and they do (Corps. Code 7222(f) (1). The board may remove a director that was board-appointed with or without cause.

May be different in other states though.

So long as the community has been 'turned over' to member/HO control (720.307) the assn. docs. don't matter.

720.303...
(10) RECALL OF DIRECTORS.—
(a)1.Regardless of any provision to the contrary contained in the governing documents,

subject to the provisions of s. 720.307 regarding transition of association control,

any member of the board of directors may be recalled and removed from office with or without cause by a majority of the total voting interests.

Our recall is very similar to this. Yes we did knock on some doors and explain our side of the issue. We served the board around 60% of the memner votes. Three business days later the President called a meeting that was not duley noticed. We had 5 hours notice and members were not advised in any way. One board member was not contacted. We were given no reason for the special meeting. Were were recalling 4 of 9 but one resigned. At the meeting the board said the recall was not done right. They agreed to file for arbitration on voted on it. There was no approval of spending the funds to do this. They also said they were hiring an attorney. (Our 3rd law firm). There was no mention of the actual ballots and they declared they had five more business days after there meeting. I don't see why the members should get stuck with another attorney fee for these 3 and add to that no spending was authorized. I also don't see where this 5 extra days comes from unless they are reading what would happen if this recall had taken place at a meeting. This way I see it after five business days we go to the state attorney.

AMI

It would seem to me if the BOD appointed a director to fill a vacancy and you recalled this director then the BOD would simply appoint a like minded/thinking/acting director. Thus in the end, all you effort to recall the director would be a waste in that the BOD would be back to where it was.

My suggestion is mount a slate of people you would prefer to have on the BOD and work toward getting them elected. This might well take a few election cycyles (say two years) but it could be done.

Now if you cannot get them elected then you have to ask yourself are the majority of people here satisfied? Are you spitting against the tide trying to stop it?

I'm a member but I speak to board members regularly.

Just to clarify my queston was about a director who was appointed by the board, not elected by the membership. Some time after appointing this director the board realized they'd made a HUGE mistake. Shouldn't the, under this scenario have the ability to remove the director without having to get 50%+1 of the membership (a portion of which are just indifferent about these matters) submit recall ballots?