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HOA Homefront: Recalling board members, Part 1

By Kelly G. Richardson

Q: In our recent HOA election, one new member was elected but resigned six weeks later. There is an all-out war between the four remaining directors. All business has stopped due to the inability of the four to agree on anything that needs a vote. Homeowners want the board to appoint the next in line from the last election, two board members will not agree to this.

We have cumulative voting and I understand recalling anyone less than the entire board is very difficult, no? We are being told that our bylaws require 25% of the owners to demand a special election. Is this so? — K.C., Mission Viejo

A: Very sorry to hear of the discord within your board, K.C. Recalling the entire board is one possibility, which normally requires the approval of a quorum of the members. Pursuant to Corporations Code 7222(b)(1), associations with cumulative voting find it much harder to recall a single or a few directors, because under that statute “no” votes are multiplied by the number of authorized seats, so it takes many more “yes” votes to remove a director.

However, a less hostile alternative would be simply to ask the board to set a special election to fill the open seat. Another option, undesirable due to its cost, would be to ask the Superior Court to appoint a provisional director to break the tie and get a special election set.

As to the minimum members necessary to petition for a special membership meeting, Corporations Code 7510(e) says that 5% or more of the members can petition for such a meeting. If the bylaws state a higher number, that might not hold up in court, since it makes it harder for members to assert their petition rights, and since the statute only requires 5%.

Q: A resident in my community has started a petition to recall our board but she is not a member. Is this allowed? — I.N., Santa Fe Springs.

A: A non-member cannot sign the petition and has no right to attend member or board meetings, as the Open Meeting Act gives members the right to attend meetings. However, the non-member certainly can seek signatures of members. Under Civil Code 4515(b)(5) a resident or member may solicit support or oppose recalls or other matters of interest to the association.

Q: Several homeowners submitted a petition to recall the entire board. The board established the timeline for the recall vote. Now a director has resigned, and the board is preparing to appoint a replacement prior to the recall vote by the members to fill out the term of the resigned director.  Is this appointment lawful or appropriate? — P.G., Riverside

A: Most bylaws recite that vacancies in the board caused by the resignation of a director are to be filled by vote of the board. This is also consistent with Corporations Code 7224, which says that, except for vacancies caused by a recall vote of the members, the board votes to fill vacancies. Such a board action must occur in an open board meeting and the decision must be disclosed on an agenda at least four days ahead of that board meeting.

This article first appeared in the Orange County Register on August 16, 2019. Access the article here.