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Board and Director Recalls

A “How-To Guide” for Managers and Directors

By Steven S. Weil, Esq.
Published: May 2018

It only takes a Petition signed by 5% of the members to trigger an Association vote to remove or recall ("recall") directors. It is important to handle the process properly since the stakes can be high for all involved - directors, members and managers - and recent history teaches us that those who initiate the recall will carefully scrutinize how the process is handled.

Petition Basics

Directors, or the Board, can be removed by "majority" vote with or without cause; the Petition need not state the reason. A typical Petition may say "The undersigned members of the Association believe the directors have unreasonably raised dues and we believe they should be removed and new directors should be elected" but other simpler verbiage - "The undersigned demand that the Board set a meeting for the purpose of removing existing directors" - also works. In any case the Petition must be signed by at least 5% of the members in good standing and each page bearing signatures must state the demand for the vote. The Petition can be hand delivered, mailed, emailed as a pdf, or faxed to the Association's Secretary to initiate the recall process.

Who Pays?

The procedures discussed here are mandated by law and the governing documents and the actions to be taken by the Board are official actions of the corporation. There is no basis upon which to "charge back" to those who signed or led the recall effort the extra costs involved.

Speed and Timing Matter

The deadlines for a recall vote are tricky and almost completely based on the Civil Code and the Corporations Code and not on an association's own governing documents. The deadlines are:

  1. Notice of the meeting to count ballots to recall the Board must be distributed within 20 days of receipt of the Petition. Otherwise, Petitioners can distribute the notice and/or a Court can order that one be distributed. If a Court Order is involved, chances are the Association will be ordered to pay the Petitioners' attorney fees. Allowing a Court to step in is a miserable idea.
  2. Secret written ballots for the recall (and, possibly for an election of new replacement directors as discussed below) must be distributed 30 days prior to the meeting at which ballots are counted.
  3. The ballot count meeting must be held between 35 and 90 days from the date the Petition is received.
  4. Bottom line: The Board must meet very soon after the Petition is received to decide on the timing of the distribution of meetings notices, the dates of those meetings and whether the recall vote will be accompanied by a vote to fill seats that might become vacant if the recall succeeds.. As a practical matter the timing requirements are such that the ballots cannot be mailed later than 60 days from the date the Petition is received. The Board, and not those seeking the recall, determines the applicable dates.

How Many Votes are Needed to Remove the Board or Individual Directors?

The answer to this deceptively complex question depends on the size of the association, the quorum requirements, whether directors were, or could have been, elected by cumulative voting, and whether the Petition "targets" all or less than all directors.

  1. Association size: generally, the recall of one or more or all directors in an association of up to 49 separate interests (condos or lots) requires the approval of an "absolute majority" of votes cast (that is, a majority of all the votes which could be cast). So, in a condominium project with 48 units, a recall succeeds only if authorized by at least 25 votes.

    In a larger association, a "simple majority" vote is needed. This means it takes a majority of votes actually cast once quorum is met. In an association with 100 units and a 25% quorum, the fewest number of votes necessary to authorize a recall is 13 (but, on the other hand, if 100 ballots were cast, the number would be 51). The quorum for any particular association is usually set forth in the Bylaws; if none is stated, the quorum is 1/3. Ultra-modern Bylaws say quorum is met once one ballot is cast.

    In all cases, an attempt to recall directors fails if quorum is not met.

  2. It's a different ball game if the Bylaws authorize "Cumulative Voting" of directors: With "CV," a minority of members can bunch up ("accumulate") their votes to elect their preferred candidates. It would be illogical if, after that candidate is elected, a majority of members could use their majority voting power in a follow recall election to remove the director elected cumulatively. Thus, very complicated rules relying on algebraic formulae ("Reverse CV") have developed which generally speaking require a "super majority" of members to recall a director who was or could have been elected by members voting cumulatively.

    Are there two exceptions? Yes! Even where the Bylaws authorize CV, it will only take a simple (project of 50 or more) or an absolute majority of members (project of up to 49 owners) to recall if all directors - the entire Board - is the target of the recall or if the one director who is was elected in an election where only one seat was to be filled (since, in that case, election by CV would be irrelevant). Otherwise, the "reverse CV" rules apply when the Bylaws allow cumulative voting and less than all directors are being targeted.

When a Majority or All Directors are Targeted, Two Votes are Required

Assume, as is almost always true, that a quorum of the Board is a majority; if the Bylaws provide for 7 directors, 4 would constitute a quorum (and the quorum requirement doesn't change regardless of the number of directors actually serving). A successful recall of 4 or more or all directors would deprive the Board of a quorum and, without a quorum, the Board cannot operate (unless the Bylaws allow, vacancies created by a recall can only be filled by membership vote or Court Order). To avoid having a Board with no quorum - and thus virtually no power to act including, presumably, no power to initiate an election - a vote to recall must be held in tandem with a vote to fill vacancies if the recall succeeds.

This principle - that the two votes must happen simultaneously - has two mechanical implications. First, the timing periods above must be modified to include a request for candidates and "candidates' night" as provided for in the association's election rules. Second balloting on the election of new replacement directors only occurs if the vote to recall succeeds. Explaining and managing this all isn't easy.

Other Considerations

A vote to recall must be conducted per the "secret ballot" double-envelope voting procedures contained in the Common Interest Development Open Meeting Act. Among other things, this means an independent election inspector must be chosen by the Board to determine qualifications and count ballots. The inspector can be the manager if the rules permit and the manager is independent. Sometimes it is better to have an outside entity or individual members could the ballots although if reverse cumulative voting rules apply the calculations can be difficult.

Targeted directors cannot use the financial resources of the Association to fight the recall. Thus, if one or more or all such directors wish to communicate to the membership as to why the recall should fail, or why proposed new directors should not be elected, they are generally on the same "playing field" as those seeking the recall. Of course, the targeted directors can schedule a special information meeting at any time (10 day notice is required) inviting all who wish to speak to address the recall issues. And, targeted directors can at their own expense like anyone else, obtain a membership list and write the membership or canvass door to door and even obtain proxies to support their political position.

Don't Ignore the Rules

It is important that the membership feels the recall and voting process was handled "above board," fairly and properly. Members should have confidence that the timelines were followed, that members were given a fair chance to vote and even that there is a forum - at a Board or special membership meeting - for grievances to be aired and addressed. Directors and management should not ignore a properly served and signed Petition.

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