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Subject: How to Recall One Board Member
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Author Messages
MikeS1
(Virginia)

Posts:439


04/21/2009 6:17 AM  
Our bylaws are silent when it comes to addressing how to recall one board member (or any for that matter). Does anyone know what the procedure is for recalling a board member in the State of Virginia?
MaryA1


Posts:0


04/21/2009 7:31 AM  
Mike,

You can google "VA Property Owners Association Act" to find the state statutes; however, I didn't see anything addressing recalling a board
member(s). Usually the bylaws will state that a board member can be recalled by a certain % vote of the members; however, an officer can be removed from his officer position by a majority vote of the BOD. However, since your bylaws and State law are silent I'm thinking recall is not an option. I don't know that the members and/or the BOD can legally take an action that is not outlined in the gov docs or in state law. Have you thought to check out the VA non profit corp statutes? HOA that are nonprofits are also subject to those laws.
MikeS1
(Virginia)

Posts:439


04/21/2009 7:47 AM  
I think that I might have found the References.
http://law.justia.com/virginia/codes/toc1301000/13.1-860.html
MaryA1


Posts:0


04/21/2009 7:59 AM  
Mike,

Good work! I would never have thought to look under "nonstock corps"! The procedure is pretty much the same as in the AZ Nonprofit Corp. Act. If you're interested, AZ has an HOA statute that outlines the procedure for removing a board member. Let me know if you'd like me to post it here.
SusanW1
(Michigan)

Posts:5202


04/21/2009 9:46 AM  
One thing that may not be included (in bylwas or state statutes) is the idea that each board member deserves indivudual attention to his/her recall. I have a problem with entire boards being recalled. I believe that EACH member being recalled derserves a motion and vote of its own. (You sound like it's just one, but be sure that person gets the benefit of a procedure. Recalling a board member should not be done easily or without merit)
MaryA1


Posts:0


04/21/2009 9:51 AM  
I agree with Susan's statement that a board member should only be recalled with merit. Recalling a board member simply because a group of people don't like his/her attitude is totally wrong. The recall should be for violating the HOAs gov docs or state law with supporting proof of the violation.
SusanW1
(Michigan)

Posts:5202


04/21/2009 10:41 AM  
Roberts Rules of Order or other parliamentary procedurals could also guide you through the process (the procedure).
MikeS1
(Virginia)

Posts:439


04/21/2009 3:22 PM  
There's no question as to whether or not the rules have been broken. They Have and there's plenty of proof. I'm really concerned about that part of the equation. Tks.
RobertR1
(South Carolina)

Posts:5164


04/21/2009 5:20 PM  
Mike,
I know this, Va. laws are funny and are not cookie cutters. However, there have been many posting here on this site and if I recall correctly HOA and Condos have some of the same requirements, but I think you probably have a better idea about that than I. My condo By-laws says Board members can be recalled, with or without cause. That is not as bad as it sounds because the Director is entitled to a full hearing before the Board or/and the members. Also, if there would be a cause that exposes the association to legal question, I expect no one would want to make a public charge. This action must be considered individually and legal help should be sought. IMHO.
If you have not done this use the search feature on this discussion page and I am sure you will find something of interest and maybe specific to VA.
I would give a qualified guess that most successful recalls, for Board or individual directors end up with the effected members resigning, and if you are trying to right your ship from bad leadership or what have you, and you have plenty of visible, vocal support, the fight ends with resignations. Be sure of your motives and the motives of your supports, organize, and have a plan to carry the association through this turmoil.

Read some of the successful revolutions (sic) that have appeared here recently, hell of a textbook if you look closely.
MikeS1
(Virginia)

Posts:439


04/22/2009 5:18 AM  
Thanks Robert - Good response! Yes, resignation is the primary goal here for just one director.
MaryA1


Posts:0


04/22/2009 9:13 AM  
Mike,

Are you a board member? If not, are you close friends with the board members? A perfect solution would be for the BOD to ask this board member to resign, especially if he has violated any provision of the community documents. We had this happen when I was a board member of my former assn. The board member in question didn't specifically violate any rules; however, he wouldn't take orders from the board. He was Chm of the AC committee and took actions contrary to the board's direction. He stupidly thought he had the right to just do whatever he wanted to do. We asked for his resignation, which he refused, however, he quit coming to the board meetings. We got him on that, as it's stated missing 3 meetings is automatic removal from the board. This was alot cleaner than going through a nasty recall.
RobertG12
(Arizona)

Posts:160


04/24/2009 9:26 AM  
Mary, I would suggest that having the BOD ask for a board member's resignation is inappropriate. BOD's do recall board members, owner's do. All that action does is to alienate the board member more. I would rather have the BOD express their concern that the actions are out of line and counsel the person in ways to get back on track. Let the errant BOD member do what they want or face a recall from the individual owners.
MaryA1


Posts:0


04/24/2009 10:58 AM  
Robert,

I don't understand why you feel it's inappropriate for the BOD to ask for the resignation of one of the board members. It happens all the time in Corp. America! I'm not promoting doing this just because a board member is having trouble doing his job or may have stepped out of line one time. And I'm not saying this should be done w/o letting him know that he's walking on thin ice, so to speak, and he'd better clean up his act! I'm talking about a board member who thinks he's "above the law" so to speak and can just do whatever he pleases, even if it's against the policies of the board. The board member I spoke of deliberately ignored a direction from the Pres then just walked out of a board meeting when asked to explain his behavior. This was on top of a number of other things he had done. Why bring the members into it by petitioning for a recall (not an easy process)when the board can very easily ask for his resignation?
RobertR1
(South Carolina)

Posts:5164


04/24/2009 12:09 PM  
This is Robert1 calling with an uninformed opinion. First, I wonder if Mr George vets the pilot of the airplane he is flying on. But maybe he feels it is just not his time to go, well George, how about if it is time for the Pilot to go.

Regards a wayward board member, happens all the time, and really to replace him doesn't solve anything unless you can pick a successor. So I say if he breaks a covenant, get rid of him. If he does no harm let him do no harm. If he will not change then get the owners to recall him.

If he is a non-productive pain, ask him to resign...........repeatedly. Nothing against the Board trying to conduct the Board business if a Pofitable manner. He might not do it ut sooner or later he will see the light or not get elected again.
EllenS1
(Florida)

Posts:1148


04/25/2009 8:20 AM  
Robert,

Our docs state that the board, not the members, can remove a board member.
RobertR1
(South Carolina)

Posts:5164


04/25/2009 9:27 AM  
The question is involved.
You have to consider for cause or not for cause. You have to consider, do you want to remove the Board member from the Board or of their responsibilities as assigned by (could be) the president. Removing from their assignment is easiest, the president or a majority of the Board can do this. Once this board member has no assignment, about all they can do is argue and fuss. They have no power, except there could be some authority listed in the documents to Board members (keys to club house maybe, or the authority to act for the association when enforcing the Rules of conduct. All kinds of stuff but nothing with real authority. So, every board member should should have some unilateral authority.

Ellen, didn't we discuss this before? If that is what your documents say and you are unique to the world of HOA's, I would suspect you could be challenged in court, because the Board members do not elect their peers, but what do I know, just my opinion.
MaryA1


Posts:0


04/25/2009 9:39 AM  
Ellen,

I, too, am surprised that your bylaws state the BOD can remove a board member. Are you sure this means they can remove a board member from the board or just remove a board member from his officer position. The latter is how most bylaws read. Normally a board member can only be removed from the board by a vote of the members -- the same people who elected him to office. IAW AZ laws, only an appointed board member can be removed by the person who made the appointment w/o a vote of the members being required. The bottom line: whoever put the board member in office is who has the authority to remove him from office.
RogerB
(Colorado)

Posts:4837


04/25/2009 9:51 AM  
Posted By RobertR1 on 04/25/2009 9:27 AM
......
Ellen, didn't we discuss this before? If that is what your documents say and you are unique to the world of HOA's, ...


I am aware of a few HOA's By-laws which allow the Board (rather than the members which is usually what the By-laws require) to remove a Board member.
MaryA1


Posts:0


04/25/2009 10:05 AM  
Roger,

I'm not surprised you say that. Every time we say "never", some comes up and says different. But, would you say, they are few and far in between?
EllenS1
(Florida)

Posts:1148


04/25/2009 4:47 PM  
Robert,

I suggest that since you are in South Carolina and have not seen our Floirda documents that you refrain from giving advice. I have seen you doing this on numerous occasions where questions come from hoas outside of South Carolina. In our HOA and in compliance with our docs the members elect the board and shortly thereafter the board nominates officers. In addition, as I have said, the board can remove a board member as long as it is done within the outline of our docs.
EllenS1
(Florida)

Posts:1148


04/25/2009 5:03 PM  
Mary,

Looks like we both may be right.

Removal:

Any director may be removed from the Board, with or without cause, by a majority vote of the members of the Association. In the event of death, resignation or removal of a director, his successor shall be selected by the remaining members of the BOARD and shall serve for the unexpired term of his predecessor." AND

Powers:

"Declare the office of a member of the Board to be vacant in the event such member shall be absent from three (3) consecutive regular meetings of the Board."

So while the members can vote to remove a board member it is the Board who selects the replacement. Our HOA faced the second situation where a board member contributed nothing and came to few meetings.
RobertR1
(South Carolina)

Posts:5164


04/25/2009 5:54 PM  
E$llen,
Can I assume you are quoting the Florida statutes?
If not then can I assume you are quoting some state statute?

Robert,

I suggest that since you are in South Carolina and have not seen our Florida documents that you refrain from giving advice. I have seen you doing this on numerous occasions where questions come from hoas outside of South Carolina. In our HOA and in compliance with our docs the members elect the board and shortly thereafter the board nominates officers. In addition, as I have said, the board can remove a board member as long as it is done within the outline of our docs.
==============================================

Now explain to me what you find objectionable to what I post about SC, that doesn't fit what you just posted.
I am giving an opinion........
In fact you never referenced Florida at all.

You got a problem with me, my e-mail is robertso@islc.net. I am sure we can work it out, if you want. I may not have seen your documents and I hope you are not telling me that your documents about this kind of thing is state mandated. It may be, why don't you clear this up and reference the state statute that contains this clause. Also, keep in mind there are others folks that read this site for information than could pertain to them, and not everyone lives in Florida or SC.
RobertR1
(South Carolina)

Posts:5164


04/26/2009 1:45 AM  
Roger,

Posted By RobertR1 on 04/25/2009 9:27 AM
......
Ellen, didn't we discuss this before? If that is what your documents say and you are unique to the world of HOA's, ...


I am aware of a few HOA's By-laws which allow the Board (rather than the members which is usually what the By-laws require) to remove a Board member.

**************************************************
Where is this post you are referring to Roger?
You didn't by any chance take it down did you?

The last paragraph above is what you wrote.
I got no problem with what you say. But if you are going to hold this logic up as some kind of unqualified standard, you would have to admit neither you, Ellen or I have seen all the By-laws in this country. So, if we are going to be specific, you can't say there are only two versions of the by-laws that are acceptable.

And since the subject is raised, how enforceable are these kinds of By=laws? Can the state enforce them as Law? Isn't they really up to the Judge behind the bench, and then, the lawyers to appeal, and the owners to kick in more money to find out that somewhere down the line, a judge will order a decree and folks may or may not pay attention to all or some of it. And doesn't this hold true for all states.
EllenS1
(Florida)

Posts:1148


04/26/2009 8:11 AM  
My post shows I am from Florida.
DonnaS
(Tennessee)

Posts:5671


04/26/2009 8:21 AM  

Roger, FYI.
This does not answer the O.Ps question (Virginia Law) but it does give a Florida answer. Quoted from our #617 Not For Profit Corp. Statutes.

"617.0842 Resignation and removal of officers.--

(2) A board of directors may remove any officer at any time with or without cause. Any officer or assistant officer, if appointed by another officer, may likewise be removed by such officer.

Of course if the governing documents state otherwise, then this is not applicable but some docs do not address this. And #720 and #718 also back this up.

GraceH
(Virginia)

Posts:224


04/26/2009 8:24 AM  
Mike,

I am also in Virginia, my association By-Laws do not use the term "recall", however it does say "removal" of a board member.
JohnK3
(Pennsylvania)

Posts:967


04/26/2009 9:49 AM  
Donna,

The language you quote is for officers. Is there a separate section for BODers?
DonnaS
(Tennessee)

Posts:5671


04/26/2009 10:06 AM  

John,

From 720 303(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. "

Florida gets a little complicated in the crossover of it's HOA and Condo Statutes. The Not For Profit Statutes were all that we had prior to the year 2000, when they wrote 718 (condo) and 720 (HOA) Statutes. Many governing docs (Articles of Inc) written prior to 2000 quoted the 617 Not For Prof. Statutes but once 2000 Statutes were written, all HOAS and Condos should have changed the removal of directors to coincide with the new Statutes. Most did not so when they go to removals, it gets screwed up but the 720 & 718 STATUTES PREVAIL

MaryA1


Posts:0


04/26/2009 10:07 AM  
Posted By EllenS1 on 04/25/2009 5:03 PM
Mary,

Looks like we both may be right.

Removal:

Any director may be removed from the Board, with or without cause, by a majority vote of the members of the Association. In the event of death, resignation or removal of a director, his successor shall be selected by the remaining members of the BOARD and shall serve for the unexpired term of his predecessor." AND

Powers:

"Declare the office of a member of the Board to be vacant in the event such member shall be absent from three (3) consecutive regular meetings of the Board."

So while the members can vote to remove a board member it is the Board who selects the replacement. Our HOA faced the second situation where a board member contributed nothing and came to few meetings.




Ellen,

The exception in your bylaws is also in mine: the board can remove a board member if he/she misses 3 consecutive meetings (unexcused absences) and another exception is if the board member is delinquent in paying assessments. But, you and I both were a bit misleading in our remarks! I knew there were exceptions to what I wrote but didn't state them and neither did you. Ten lashes with a wet noodle to each of us, right?
EllenS1
(Florida)

Posts:1148


04/26/2009 3:32 PM  
MaryA,

Ouch! You're right again.
RuthF1
(Washington)

Posts:117


05/27/2009 7:04 PM  
Thanks Robert you answered the question I was going to ask. Our Bylaws also state to remove a officer: that at any regular/special meeting of the baord upon an affirmative vote of a majority of the members of the board any officer may be removed, either with or without cause.

The majority BODs are going to vote to have the president step down this next meeting. I don't like using the word remove as he is going to be on the board just not be president. I wasn't going to push for this as we have had so much drama since the annual meeting, however at our last meeting the majority voted that he needed to address the PM and let them know that we felt that she acted in an unprofessional manner at our last meeting (look up cops were called at our last meeting (grin)). Instead he told her that we were sorry and we would make sure none of the owners "attacked" her again. Long story some of you already know about.

This was the last straw for the board and the majority of owners we have spoken with want him gone so we are going to see if we can salvage the rest of the year and have peace going forward.

r
AnnJ2
(Colorado)

Posts:120


05/27/2009 7:10 PM  
If the by-laws refer to a director may be removed by the board then they can be taken off the board. if it says an officer may be removed then yes they can only be removed from an "officership" (sp?) such as President but the board could not reomve from the board an elected member (director). Usually that is how it reads since it defeats the purpose of a general election by the membership if the person the membership elected to be on the board could be immediately removed by the sitting board if they did not like the electee.
MindyD
(Arizona)

Posts:47


05/27/2009 11:23 PM  
I would like to know how to go about that in Arizona. Mary you are so full of information I love it. I could also use a sample letter, I will need to get other signatures if it can not wait till the next meeting?
MaryA1


Posts:0


05/28/2009 9:00 AM  
Mindy,

Your bylaws should provide you with the answer. Normally an officer can be removed from his officer position only by a vote of the board. This action does not remove him from being a director; therefore he remains on the BOD. The Title 10 stautes do not address removing officers, only removing directors. The Title 10 statutes only apply if your bylaws do not address removal of directors. Normally a director can only be removed by a vote of the members; however if the director was appointed to his position, IAW the Title 10 statute, he can only be removed by the person who appointed him, which normally would be the BOD.

If you are a board member, all you need to do to remove an officer is to make a motion and let the board vote on it. However, as a member you cannot remove an officer from his board position, but you can, of course, ask the board to do so. However, if you want to remove a director from the board, there is a state statute that must be followed. A petition is required to be submitted to the board, who in turn must call a special meeting to vote on the recall. The planned community statute is ARS 33-1813, posted below. The statute for condos is 33-1243 and it reads the same.

33-1813. Removal of board member; special meeting

A. Notwithstanding any provision of the declaration or bylaws to the contrary, the members, by a majority vote of members entitled to vote and voting on the matter at a meeting of the members called pursuant to this section at which a quorum is present, may remove any member of the board of directors with or without cause, other than a member appointed by the declarant. For purposes of calling for removal of a member of the board of directors, other than a member appointed by the declarant, the following apply:

1. In an association with one thousand or fewer members, on receipt of a petition that calls for removal of a member of the board of directors and that is signed by the number of persons who are entitled to cast at least twenty-five per cent of the votes in the association or one hundred votes in the association, whichever is less, the board shall call and provide written notice of a special meeting of the association as prescribed by section 33-1804, subsection B.

2. Notwithstanding section 33-1804, subsection B, in an association with more than one thousand members, on receipt of a petition that calls for removal of a member of the board of directors and that is signed by the number of persons who are entitled to cast at least ten per cent of the votes in the association or one thousand votes in the association, whichever is less, the board shall call and provide written notice of a special meeting of the association. The board shall provide written notice of a special meeting as prescribed by section 33-1804, subsection B.

3. The special meeting shall be called, noticed and held within thirty days after receipt of the petition.

4. For purposes of a special meeting called pursuant to this subsection, a quorum is present if the number of owners to whom at least twenty per cent of the votes or one thousand votes, whichever is less, are allocated is present at the meeting in person or as otherwise permitted by law.

5. If a civil action is filed regarding the removal of a board member, the prevailing party in the civil action shall be awarded its reasonable attorney fees and costs.

6. The board of directors shall retain all documents and other records relating to the proposed removal of the member of the board of directors for at least one year after the date of the special meeting and shall permit members to inspect those documents and records pursuant to section 33-1805.

7. A petition that calls for the removal of the same member of the board of directors shall not be submitted more than once during each term of office for that member.

B. For an association in which board members are elected from separately designated voting districts, a member of the board of directors, other than a member appointed by the declarant, may be removed only by a vote of the members from that voting district, and only the members from that voting district are eligible to vote on the matter or be counted for purposes of determining a quorum.


RobertR1
(South Carolina)

Posts:5164


05/28/2009 9:32 AM  
Mary,
Just thought I would mention, and not in a critical sense, that the use of the word "Officers" can get confusing, at least in our documents and of course we know probably none of the documents we all live under are original thought, they are all copied in part from something else.

But our documents refer to "Officers" as a special appointment by the board to assist the Board in a specific area. They are not elected, but appointed by the board, their duration of the appointment can be for any length of time. Usually the appointment will specify the duties and reporting procedures. They can be replaced or terminated by the Board at any time for any or no reason.

I don't believe there is any reference to Officer's in any context when referring to the Board, in our documents, except as noted. Board members, Directors, maybe a reference to the President or other members of the Board that have a designated assignment (VP for one), all are terms used to reference the Board members.
MaryA1


Posts:0


05/28/2009 9:47 AM  
Robert,

Are you saying the "officers" of your assn are not the board members? In most assn's the officers are actually board members who have been appointed by the board to serve in the various officer positions, i.e., Pres, VP, Sec & Treas. I have heard of some assn's that have officers that are elected by the membership but they are also the directors. The only difference is that instead of the board "electing" the officers, the members do. When wanting to remove an officer, the general rule of thumb is that whoever elected the officer has the authority to remove the officer. And, yes, you are correct in saying the officers are generally not referred to in the docs. Normally the docs only refer to "directors" or perhaps a particular officer such as the Pres.
RobertR1
(South Carolina)

Posts:5164


05/28/2009 10:25 AM  
Mary,
Reading our documents as written that is exactly what I am saying. I don't imagine we are unique because most of this stuff in documents are boiler plate copies.

It is very clear and I really think it is a good idea. This allows for the Board to drawn on some special expertise a member may have to oversight or investigate a special area. It also says that the reports of "Officers" will be made directly to the Board for the Board to decide how to use the information generated. I have tried for years to get the Board to use this provision, to no avail.
It could have a lot of possibilities to address all kinds of stuff and those selected could then operate under the aegis of the Board, thus, would be an official function, and would involve more members of the council. "council" in our docs is the total co-owners.
As far as I know, all our Board members have held the vote of the unit, and that has not been challenged. So, you could have a Board member from one unit, any # of officers from the same unit co-owners. This seems like a good thing to me, but none of our Boards will buy into it. I think it is just because it may make their job a little more accountable, if more owners are involved directly with the Board. Now a committee is different and you know all about that.
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Forums > Homeowner Association > HOA Discussions > How to Recall One Board Member



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