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SimonS
(Florida)

Posts:15

07/23/2008 1:47 PM
I am an officer of the board in a Florida Hoa, Several members of our board have expressed a vote of no confidence to one another in regards to the president and feel he has become a hinderance and possible liability to the community, as board members can the board vote and remove him out of office or would he have to be recalled and removed by majority vote of the community membership? He has alienated at least 6 board members with his attitude and his lack of communication to other board members. This has been brought to his attention before and it hasn't changed. action needs to be taken before it starts to effect the community as a whole. Thanks for all of your help. Simon

SusanW1
(Michigan)

Posts:2316

07/23/2008 2:01 PM
Most of the time, the documents - epsecially the bylaws - give the steps for removing a board member. How did he get on the board, then elected to the presidency? Your state may have some particular rules to follow. Stay tuned. We have Florida experts here.

GlenL
(Ohio)

Posts:1466

07/23/2008 2:12 PM
As Susan stated check your documents and I would add State law on removal. As a general rule if the homeowners elected the person to the Board then only the homeowners can remove him from the Board; however if the BOD elected him to the position of president then they can remove him from that position but NOT from the Board.

SimonS
(Florida)

Posts:15

07/23/2008 2:45 PM
The president as well as all other officers are elected by the homeowners, on the ballot each person's name as well as the position he will fill. The Board does not elect its officers, we have 6 directors and 5 officers that make up the board. 5 Board members/officers will quit if he doesn't resign otr be removed. He has crippled the Board from doing their job for the community because of his wanting to control everyone and everything. It does state in our bylaws about recall and removal,I was just hoping as Board members we could do it without the rest of the communities involvement. I guess we need to change our by-laws for the future. SimonS

MaryA1
(Arizona)

Posts:2498

07/23/2008 3:07 PM
Posted By SimonS on 07/23/2008 2:45 PM The president as well as all other officers are elected by the homeowners, on the ballot each person's name as well as the position he will fill. The Board does not elect its officers, we have 6 directors and 5 officers that make up the board. 5 Board members/officers will quit if he doesn't resign otr be removed. He has crippled the Board from doing their job for the community because of his wanting to control everyone and everything. It does state in our bylaws about recall and removal,I was just hoping as Board members we could do it without the rest of the communities involvement. I guess we need to change our by-laws for the future. SimonS Simon, Exactly what does your bylaws say about removing an officer? Most assn bylaws will state a director, in your case an oficer, can only be removed by a vote of the members. However, in my former assn's bylaws there were several other causes that gave the board the authority to remove a director: 1) delinquent in assessments for more than 30 days 2) in the event a director ceases to be an owner 3) missing 4 consecutive board meetings, except in the case of injury, illness or similar excusable circumstances When I was a board member at a former HOA the board decided we needed to remove one of our directors. We got him on #3! Thoroughly read your docs, you may find a way w/o getting the members involved.

TonyM3
(Arizona)

Posts:140

07/23/2008 9:40 PM
Posted By SimonS on 07/23/2008 2:45 PM The Board does not elect its officers, we have 6 directors and 5 officers that make up the board. Only the directors make up the Board of Directors. Is he just an officer, or both an officer and a director? Officers don't get a vote.

SusanW1
(Michigan)

Posts:2316

07/24/2008 5:00 AM
It's amazing how ONE person gets such power over a Board this large! How to get rid of a volunteer? Take away the things they do . . . For example, even if the bylaws say this person conducts the meetings, you can suspend the rules and elect another person to lead the meetings. YOUR power comes from the vote. Start making motions to strip him of his powers!!

GeraldT4

Posts:934

07/24/2008 7:17 AM
SimonS - Put aside for now the procedure your members used to elect the board members (directors) and that they did so with their positions each would fill. What do your by-laws state., please sight them. In my association and many associations the membership elects the board members, but the board members decide who will fill the director positions. And that the directors serve at the pleasure of the board members. What say your governing documents to the matter?

MaryA1
(Arizona)

Posts:2498

07/24/2008 7:33 AM
Simon stated the officers are elected by the members. If this is the case, then, IMO, they can only be removed from their position by a vote of the members. Unelss there is another provision in the bylaws allowing the directors to remove an officer, i.e. for delinquency of assessments; for missing so many board meetings; for no longer being a property owners, etc., etc. If the officers are elected by the members the directors cannot strip an officer of his duties as some have suggested.

GeraldT4

Posts:934

07/24/2008 8:04 AM
MaryA1 - You are correct so long as the by-laws provide that board members and officers are elected by the membership. I am seeking Scott clarify as to the exact wording of the by-laws because there's a possibility that the membership is following a procedure that may not be necessary because the by-laws may permit the board members to remove the officer position. Removal of a Board member by the membership is one thing, removal of an officer position is another. The two procedures may or may not be one in the same.

MicheleD
(Kentucky)

Posts:1862

07/24/2008 8:07 AM
Posted By GeraldT4 on 07/24/2008 7:17 AM SimonS - Put aside for now the procedure your members used to elect the board members (directors) and that they did so with their positions each would fill. What do your by-laws state., please sight them. In my association and many associations the membership elects the board members, but the board members decide who will fill the director positions. And that the directors serve at the pleasure of the board members. What say your governing documents to the matter? Gerald, do you not mean to say "officers" above where you are referencing "directors"? Board "members" ARE directors. "Board" is a shorthand way of saying "board of directors," not "board of members." The "officers," on the other hand, are generally board of director "positions" that board members (directors) fill and that have specific "roles." The "officers" generally, BUT NOT ALWAYS, are elected/appointed by the entire board of directors and often (though not always) are comprised of board (of director) members.

DonnaS
(Tennessee)

Posts:2948

07/24/2008 8:09 AM
Simon, Go to "GOOGLE" and key in "Fl. Statutes 720." The 3rd item is what to call up and then read under 720.303 (10) Recall of Directors. Below, I copied just some of it but your answer is in there. There are more parts to this but what your answer is , is below. (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). (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. (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.

SimonS
(Florida)

Posts:15

07/24/2008 8:29 AM
Our by-laws state that a vacancy can be declared whenever an officer or board member fails to attend 2 or more regular board meetings within a six month period. That hasn't happened to the president, he attendance has been right on, however, because of his actions and deceptions (example)he takes upon himself legal control with our lawyer, and she ( the lawyer) seems to go along with it,only when backed into a corner does he ask for the rest of the Board's vote on most legal issues.

GeraldT4

Posts:934

07/24/2008 10:19 AM
Michelle - Yes, where I wrote "board members decide who will fill the director positions" I meant to write "officer positions". You see I wrote in my association and many associations the members elect the board members....that the directors serve at the pleasure of the board members. Therefore isn't it understood that many associations does not mean all associations. You do realize that writing in all caps indicates you are yelling. : )

GlenL
(Ohio)

Posts:1466

07/24/2008 10:19 AM
Simon the BOD has the power and when the president gets out of line call him on it. Make motions limiting his power, for instance the BOD will only pay for legal services approved by the BOD. But before you do this sit and examine the motives of your fellow BOD members and yourself. Since the H/O's voted him into the position of president they obviously saw something in him. Is he truly a menace to the community or is the BOD's collective nose out of joint over something else?

GeraldT4

Posts:934

07/24/2008 10:26 AM
DonnaS - Your sighting of the statute pertains to a recall of a board director. If a director happens to be an officer, as in Simon's case with his President, depending on how his docs are written, the President may be able to be stripped of his officer duties but remain as a Director. Simon needs to provide us an exact citing of his docs if an officer can be removed by decision of the Board members. If it is not stated in his documents than the discretion should be with the Board members to decide, right?

DonnaS
(Tennessee)

Posts:2948

07/24/2008 12:51 PM
Geral, In Florida, all members on a Board are elected by the membership. They chose among themselves who will hold what officer position as for President, Treasurer or whatever. Recalling of a Board member also removes his position as an officer of that board. The board then can appoint any member to fill a vacant board position. That new position will not inherit the removed officers position. The Board can revote on what position they will hold. THE MEMBERSHIP ELECTS THE BOARDS AND ONLY THE MEMBERSHIP CAN REMOVE THEM., OFFICERS OR NOT I was appointed to fill a board position when we increased from 3 to 5 board members thru an amendment change. I was "member at large" until a member (V.P) had to leave and then voted by the remaining to be secretary, because we reshuffled officer jobs to best suit our skills.

MicheleD
(Kentucky)

Posts:1862

07/24/2008 1:11 PM
Posted By GeraldT4 on 07/24/2008 10:19 AM Michelle - You do realize that writing in all caps indicates you are yelling. : ) Not always. It could mean that one is writing an entire passage in all caps. When all-capping one or two words, it means you are placing EMPHASIS on one word over another and don't have the ability to place that emphasis through HTML or BBC code. I HOPE that makes sense. . .

MicheleD
(Kentucky)

Posts:1862

07/24/2008 1:12 PM
PS: I left a word out of that reply: "It could mean that IF one is writing an entire passage in all caps." I left out the "if."

GeraldT4

Posts:934

07/24/2008 4:01 PM
Posted By DonnaS on 07/24/2008 12:51 PM Geral, In Florida, all members on a Board are elected by the membership. They chose among themselves who will hold what officer position as for President, Treasurer or whatever. Recalling of a Board member also removes his position as an officer of that board. The board then can appoint any member to fill a vacant board position. That new position will not inherit the removed officers position. The Board can revote on what position they will hold. THE MEMBERSHIP ELECTS THE BOARDS AND ONLY THE MEMBERSHIP CAN REMOVE THEM., OFFICERS OR NOT I was appointed to fill a board position when we increased from 3 to 5 board members thru an amendment change. I was "member at large" until a member (V.P) had to leave and then voted by the remaining to be secretary, because we reshuffled officer jobs to best suit our skills. Where in the statute you cited does it outline "officers or not"?

DonnaS
(Tennessee)

Posts:2948

07/24/2008 4:34 PM
Gerald, I am not being snitty or anything like that but--- Please show me one place where the word "officer" is used. These headings are from our Not For Profit Corp Statutes and there also is nor mention of "officers" 617.0801 Requirement for and duties of board of directors.--All corporate powers must be exercised by or under the authority of, and the affairs of the corporation managed under the direction of, its board of directors, subject to any limitation set forth in the articles of incorporation 617.0802 Qualifications of directors.-- (1) Directors must be natural persons who are 18 years of age or older but need not be residents of this state or members of the corporation unless the articles of incorporation or bylaws so require. The articles of incorporation or the bylaws may prescribe additional qualifications for directors 617.0808 Removal of directors.--A director may be removed from office pursuant to procedures provided in the articles of incorporation or the bylaws, which shall provide the following, and if they do not do so, shall be deemed to include the following: (1) Any member of the board of directors may be removed from office with or without cause by the vote or agreement in writing by a majority of all votes of the membership. (2) The notice of a meeting of the members to recall a member or members of the board of directors shall state the specific directors sought to be removed.

GeraldT4

Posts:934

07/25/2008 6:46 AM
DonnaS - Exactly my point, your not following me. There is no mention of the word officers. Perhaps you all will follow that fact to it's logical conclusion in that removal of an officer at least according to Florida state statute is not procedurally outlined. Hence the governing documents need to be followed. Once again, Simon, what do your governing documents state, not about removal of officers or board members, but election of officers, anything?

GeraldT4

Posts:934

07/25/2008 6:46 AM
DonnaS - Exactly my point, your not following me. There is no mention of the word officers. Perhaps you all will follow that fact to it's logical conclusion in that removal of an officer at least according to Florida state statute is not procedurally outlined. Hence the governing documents need to be followed. Once again, Simon, what do your governing documents state, not about removal of officers or board members, but election of officers, anything?

DonnaS
(Tennessee)

Posts:2948

07/25/2008 7:50 AM
Gerald, I do understand what you are saying but according to the Statutes and that includes our Articles of Inc with the State, no provisions or verbage for Officers is used. That is strictly a Board function, --to elect among themselves, who will be holding what position. Elections only elect Board members and the membership has no say in officer positions.I know of a few and it happened on our Board, that we switched our title/officer positions just because of workloads. So when a Board member is recalled, it is him or her as a Board member. I checked all 3 sets of Docs that I have with 2 of them stateing in the ByLaws, that "immediately following the election of the Board at an annual meeting, the newly elected Board members shall meet and vote on officer positions." That is the only mention of the word "officer". Later on in those documents, there is a statement of each officers duty requirements. Recalls do not mention the word "officer" at all.

DwightT
(Idaho)

Posts:481

07/25/2008 8:31 AM
Just to be contrary, it has been mentioned in this forum that in some HOAs it is technically possible for a non-Board member to be an officer. If that is true, then if the membership recalls the Board member who happens to be, for example, the President, is that person automatically removed from the Presidency? Couldn't the remaining Board members technically decide to keep him on as the President? I realize that that is a highly unlikely situation, but still....

MicheleD
(Kentucky)

Posts:1862

07/25/2008 8:42 AM
Good point, Dwight. and if your docs allow for non-members to be president, that could indeed happen!

DonnaS
(Tennessee)

Posts:2948

07/25/2008 8:43 AM
Dwight, Under Florida Statutes, a recall is done by the people who elected that Board member which in the States case, is the membership. Can the remaining Board members keep the recalled person on in another position? NO. They are automatically removed from the Board, period, President or not and the Board does not vote whether to keep them on or not. The Board then can appoint or wait until an election to fill the position of a vacant Board member. Not an officer but a Board member. That is why the Boards have the ability to vote among themselves as to what officer position they will hold.

GeraldT4

Posts:934

07/25/2008 10:23 AM
Back to Simon's original post "...as board members can the board vote and remove him out of office or would he have to be recalled and removed by majority vote of the community membership?...". There's been to much focus upon the removal of a director. While important information, it's not what Simon needs to know. He wants to know if an officer can be recalled and removed by the board or by vote of the community. In my association, and many associations, officers are removed by the Board, not the community. In Simon's case the community votes for them to fill the director spot and officer position. Albeit fine, there may or may not be an obligation for the community to do this. Only Simon can tell us exactly what his governing documents say to the matter.

GlenL
(Ohio)

Posts:1466

07/25/2008 11:08 AM
Gerald & Donna perhaps you missed his follow up to my inquiry on how officers are elected. In my Association the elected directors decide which position each will hold but evidently in his community homeowners directly elect the officers. Simon if you post the relevant section on election of officers as Gerald requested it would save speculating on just what is going on and what can be done; also what they say about removal. Please post the actual sections not what they "basically" say. Posted By SimonS on 07/23/2008 2:45 PM The president as well as all other officers are elected by the homeowners, on the ballot each person's name as well as the position he will fill. The Board does not elect its officers, we have 6 directors and 5 officers that make up the board. 5 Board members/officers will quit if he doesn't resign otr be removed. He has crippled the Board from doing their job for the community because of his wanting to control everyone and everything. It does state in our bylaws about recall and removal,I was just hoping as Board members we could do it without the rest of the communities involvement. I guess we need to change our by-laws for the future. SimonS

GeraldT4

Posts:934

07/25/2008 11:19 AM
GlenL - I'll go out on a limb here and speculate that no change to Simon's by-laws is necessary. That his association is following a procedure of electing a person a director and officer, rather than just electing directors and letting them choose who will be officer.

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