Is a board member acting irrationally, causing losses, harassing employees, contractors or members? Are any board members spending association funds without authorization?
Recalling one board member is harder than recalling all board members if the HOA or Condo has cumulative voting authorized by its bylaws. Some people get the wrong idea by reading the bylaws and seeing that Board action or membership action requires only a majority of a quorum for approval.
Recall is different. It is driven by statutes in California, in the Corporations Code. If you are an unincorporated association then check the documents, but corporations which most HOAs and Condo association are would be governed by Corporations Code Section 7222. I have copied it below into this blog. Do not forget to look at (b((1). The formula is complicated but say there are 5 board members and you are trying to recall one. It is very hard, nearly impossible because a minority candidate can be elected by a minority of owners cumulating their votes and putting them all on one candidate. To get a board member off the board the number of no votes needed is only be 1 more vote than it takes to get a minority candidate elected. Since failure to vote constitutes a “no” vote, i.e., against recall, and since HOA and Condo owners are notoriously apathetic, it is next to impossible to garner enough favor among the members to recall a board member. You could be looking at needing more than 80% to vote in favor for a successful recall (not likely to occur in most scenarios). Most assocition members have no idea who or what is on the board or what they are doing anyway which in many cases leadsw to failure to return the ballot. Even worse, if the election gets hot and heavy and the sides bombard the owners with negative press or letters, many owners hibernate or lash back with anger at the board and the owners who want to recall them - sending the message – “keep your dirty laundry to yourselves”. Back in the day when a vote could be taken at a meeting, I have seen 5 brand new candidates step up and nominate themselves from the audience for a post recall election and get elected because everyone dragged out of their homes in disgust shunned the old board and the recall committee members. It’s not likely to happen today because of the complicated election rules and lack of sophistication in using them for any election, let alone a recall election, but owners still can get really angry and take it out on someone.
It is always better to try and get support for good leadership at election time, to get a sympathetic candidate election and in time improve the board. And if a board member is misbehaving, there are a number of things the majority of the board can do to “neutralize” him/her/them. Almost any course of action is better than recall as it completely disrupts the community. Think of the one situation where an HOA board spend thousands of the HOA budget dollars defending a recall effort with the help of the HOA attorney, only to resign en masse the day after the recall election. Talk about idocy! It’s a true story! Egos often trump good sense when a board gets a whiff of a festering recall effort.
If you want to know more about recalling a board member or the whole board, there is a Guide (Recall Guide) available on my website at www.californiacondoguru.com (in the webstore) that explains the whole ball of wax. You can spend hundreds, maybe thousands getting an opinion from an attorney, or you can educate yourself for $50 – before you get in over your head. Besides the fact that the recall statutes are complicated – the California elections laws for HOAs and Condos really muck up the works! My “Guide” explains the ins and outs, and the whats, hows and whens of mounting a recall effort – or defending one. I did it for you!
Here is the law for incorporated HOAs and Condos in California
7222. (a) Subject to subdivisions (b) and (f) of this section, any
or all directors may be removed without cause if:
(1) In a corporation with fewer than 50 members, the removal is
approved by a majority of all members (Section 5033).
(2) In a corporation with 50 or more members, the removal is
approved by the members (Section 5034).
(3) In a corporation with no members, the removal is approved by a
majority of the directors then in office.
(b) Except for a corporation having no members, pursuant to
(1) In a corporation in which the articles or bylaws authorize
members to cumulate their votes pursuant to subdivision (a) of
Section 7615, no director may be removed (unless the entire board is
removed) when the votes cast against removal, or not consenting in
writing to the removal, would be sufficient to elect the director if
voted cumulatively at an election at which the same total number of
votes were cast (or, if the action is taken by written ballot, all
memberships entitled to vote were voted) and the entire number of
directors authorized at the time of the director's most recent
election were then being elected.