RECALLING A MEMEBER OF YOUR HOA BOARD OF DIRECTORS

Written by Benny L. Kass

Question: I have owned my home and have served on the Board of Directors of my Community Association for several years. Most of the Board members with whom I serve are hard-working and genuinely concerned about the welfare of our Association. However, in my opinion, one of our Board members appears to be using his position to further his own personal and private objectives. He tries to obstruct everything that the Board wants to accomplish, and has made false statements to Board members. He also does not attend many of the Board meetings.

How can we remove him from the Board? There are two years left on his term of office.

Answer: Removing an elected member of a Board of Directors must be done carefully and cautiously. Before you even start the process, it is recommended that two or three Board members sit down to privately discuss your concerns with that other member. He may be an obstructionist; on the other hand, he may believe that his fellow Board members are the cause of any problems and is trying — in his own way — to correct the situation.

During that private discussion, do not rely on assumptions or rumors, but on verified facts and documents. Listen carefully to that Board member, so that you can objectively decide whether you are right in your observations of his conduct.-

If after such meeting you still believe that the Board member must be removed, ask him if he will voluntarily resign. It clearly makes more sense for a Board member to resign, than to go through a lengthy — and highly political — process to have the Board member removed from office.

You must familiarize yourself with the removal provisions spelled out in your Association documents. Most legal documents (such as the Bylaws) will discuss the process that is required to “oust” a Board member.

You have not indicated whether that Board member is also an officer in your Association. Most legal documents allow a majority of the Board to remove an officer, but require a majority of the owners to remove a member of the Board of Directors. Thus, a person can be removed as an officer but still can be a Board member.

Here is the process in general terms, although your particular Bylaws may require a different approach. Removal of a Director must take place at an annual or a special meeting of the Association. Proper notice (in accordance with the requirements of your legal documents) must be given to all owners. It is a mistake to notify only resident owners; investor owners must also be given the opportunity to participate – and vote — on the removal of the Board member.

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A quorum must be present at the meeting. Review your legal documents to confirm whether the recall can be obtained by a majority of the members present (in person or by proxy) at the meeting, which is typically the case, or whether it requires an affirmative vote of a majority of all owners.

Due process is an important element of any removal proceeding. Whether or not your Bylaws require such due process, the Board member who is the subject of the removal must be given the opportunity to defend himself and his conduct. Time limitations should be agreed upon at the beginning of the meeting, whereby Proponents, opponents and the Board member himself are given sufficient time in which to make their respective case – for or against removal.

After debate is ended, the presiding officer at the meeting will appoint (or the membership will elect) inspectors to monitor and count of the ballots. Normally, such a vote is by written proxy or ballot; this will enable people to avoid being intimidated — one way or the other — so that they can freely and honestly vote their conscience.

After the vote is counted, if the Board member is removed from office, his replacement should be elected by the membership. This vote can take place at the same meeting, or at another special meeting called for the purpose of conducting the election. If the next annual meeting is coming up shortly, the election can also take place at that meeting.

Many years ago, a statesman urged his fellow country persons to “throw the rascals out.” Owners have that right, but it must be exercised with care, dignity and due process.