By Kelly G. Richardson
Q: Our HOA recently had a total board recall and election. The new (self-appointed) president handed out terms based on votes received, with three two-year and two one-year terms. Our bylaws specify a procedure for the first election, namely drawing of lots to determine terms, to be two (two-year) and three (one-year). Subsequent elections should be for two-year terms, for a staggered election pattern. Should the president have followed the bylaws’ first election procedure, as the situation is identical, or should the president have given more two-year terms than is specified? I can’t find the answer anywhere on the Internet. — J.T., San Jacinto
A: First, an HOA president does not appoint offices or board terms and is one vote out of the five who should be making that decision. Having not seen your association governing documents, I cannot say exactly what was required to happen.
Normally, when an association begins to use staggered terms, the first election will have directors with the higher vote totals receiving the longer terms. We normally draft such bylaw provisions or amendments that way. If everyone received two-year terms the staggering would be destroyed so your suggested approach makes sense if it does not violate the governing documents.
Related: HOA Homefront: Recalling board members, Part 1
Q: We had a five-member board. Two of the members did not like the others, organized a total board recall election, recalled the entire board, and then ran again and won. Is this legal besides being unethical? — E.F., Temecula
A: Directors are also members and at election time can personally support or oppose who they choose as directors. What directors cannot do is to use the management, legal counsel, vendors, or other HOA resources to oppose or support any candidate. Once the election is over, win or lose, HOA members should insist that their directors work together civilly and for the benefit of the association.
Q: I look forward to your weekly column. For various reasons, a few months before our normal annual meeting a petition was submitted to recall the entire board, supported by most of our community. Do we still have to have our annual board member election or is the board elected during the recall remain in place until the following year’s annual meeting? The challenge that I foresee is that the existing board will state it is a waste of money to have the two voting processes (recall and annual). — E. L., Costa Mesa
A: While it might seem to make sense to cancel the annual meeting if it falls only a short time after a completed recall and installation of a new board, the association still must follow its bylaws. Instead of a recall shortly before the annual meeting, such as in your case, sometimes it is better to focus on the upcoming annual meeting, instead of electing a board only for a short time.
Another approach would be for the directors to all tender their resignations, conditional upon achieving a quorum, in the upcoming election. Then perhaps the recall petitioners might be willing to wait, and everyone could focus on trying to elect the best board available. Recalls are a hostile and divisive business and should be avoided if possible.
This article first appeared in the Orange County Register on August 23, 2019. Access the article here.