Condo Media - May 2020 - 18

Asked & Answered

Removing Board Members
Here's What You Need to Know

A homeowner is demanding the
recall of one of our elected board
members. What procedures must
owners follow and what requirements
must they meet to pursue a recall?
And how should the board respond?
You will find the answers, or most of them, in your
governing documents, Richard Brooks, a partner in
Marcus, Errico, Emmer & Brooks, P.C., responds.
Most documents specify that board members can
be removed with or (usually) without cause, by a
majority vote of owners. The documents also typically
detail the procedural steps owners must follow. The
procedures are straightforward: At least one-third of
owners (in most cases) must sign a letter or a petition
asking the board to call a special meeting at which
owners can vote on the recall demand. "It's a very fair,
democratic process," that allows owners to remove the
board members they elected if a majority of the owners are unhappy with them, Brooks notes.
PROCEDURAL DOS AND DON'TS
Owners must follow the procedural steps precisely,
however, and many fail to do that. One common
mistake is instead of circulating a petition requesting
a meeting, they circulate a petition demanding the
removal of the board. If a majority of owners sign the
petition, they assume the removal action has been
taken. The board can argue, legitimately, that removal
requires a vote of the owners and the dissidents must
properly request a meeting at which to hold one.
Instead of getting into a protracted procedural
squabble, Brooks advises boards to call the special removal meeting, even if the owners' petition is flawed.
In fact, he suggests that boards not wait for an owners'
petition, but schedule an "informational" meeting
preemptively, when they become aware of the recall
movement. Giving dissident owners an opportunity
to air their grievances in public, and giving boards an
opportunity to respond, can often "take the wind out"
of a removal initiative, Brooks says. For one thing,

CONDOMEDIA May 2020

he notes, "it can be hard to get people who show up
for an informational meeting to show up for a second
meeting a month later" to vote on the recall.
If owners submit a petition for a recall meeting,
flawed or not, Brooks advises boards to call the meeting "the right way," scheduling it as soon as possible,
with proper notice to owners. He also suggests that the
meeting notice specify that if owners vote to remove the
board, they will vote immediately, at the same meeting,
on candidates to fill the vacant positions. This avoids a
gap during which there is no governing board in place
to handle essential association business.
"Usually the tide turns at the meeting," Brooks says.
"When it becomes clear that board members are not
embezzling funds or mismanaging the association's
finances," the support for removing them tends to
fade. The discovery that no one else wants to serve
on the board also tends to undercut the removal initiative, Brooks notes.
Sometimes board members dig in their heels, refusing to call a removal meeting even if owners follow the
required removal procedures. Brooks tells them to
"be realistic." The documents require a meeting and
the board must hold one. "If you refuse," he tells board
members, "the owners will win in court. The owners
voted you in," he adds. "They can vote you out."
Boards can fight the removal process, Brooks tells
them, but to what end? "Do you really want to live in
a community where a large number of your neighbors
hate you?"

Condo Media - May 2020

Table of Contents for the Digital Edition of Condo Media - May 2020