Total Recall

Whether there’s a legitimate reason or simply a bruised ego, community association residents can remove board members through a recall election. Here’s how it works in the Sunshine State.

Reprinted with permission from the May/June 2018 issue of Common GroundTM magazine, the flagship publication of Community Associations Institute (CAI). www.caionline.org

When a Collier County, Fla., homeowner lost a board election by a mere two votes, she was convinced that board members took bins of ballots to their homes to count the votes—completely inappropriate. Because she felt slighted, the homeowner initiated a recall election and won. Unfortunately, during the next election, the same owner lost by a landslide.

In some cases, recall elections can be a popularity contest. However, most are brought about for legitimate reasons like lack of trust and confidence in a board member or opposing views on the future of the community. To keep board members honest and accountable and to safeguard communities from possible mismanagement and fraud, Florida created a law for those instances that allow homeowners to initiate a recall of a particular board member.

The requirements state that a board member may be recalled by a vote or written agreement drafted by a majority of homeowners whether there's a legitimate reason or simply a bruised ego. The law also says that a special meeting may be called by only 10 percent of homeowners if a meeting notice is issued, though there are instances where this law isn't applicable.

A recall election can't be called 60 days or less before a scheduled reelection of the recalled board member or 60 days or less since the election. If an election is about to take place, there is no point in attempting a recall because homeowners can simply vote as they like. If the election just occurred, allowing a recall that close would most likely lead to a never-ending cycle of voting, which will disrupt the community. It's also unlikely to lead to a different result.

Recall Requirements

Getting your ducks in a row is an important part of the recall process. A homeowner seeking a recall must be organized if he or she wants to effectively convey to the community that a person (or persons) on the board needs to be replaced. Individuals who support the recall of a board member must first designate a point person for all administrative duties, tallying votes, and ensuring all necessary information reaches the board.

In the event the board doesn't certify the recall by written agreement, it must file a petition for arbitration, a process where the dispute between parties is resolved by an arbitrator, as opposed to a judge. The point person also can receive pleadings, notices, or other papers on behalf of the persons executing the written agreement.

If the parties decide to seek the assistance of legal counsel, one person should serve as the point of contact for homeowners. It also can be beneficial to form a committee to lessen the financial burden of arbitration, which can be expensive.

A recall can occur through a meeting or written agreement. If a meeting is held, and a majority approves, then the board must meet within five business days to recall the board member. The recalled board member then has 10 business day to surrender all records and property of the association. If a written agreement results in a vote, the board has to convene to recall the board member within five full business days after the written agreement is received. Just like a meeting recall, the board member must release all records and property of the association within 10 business days.

If there is a recall to remove a minority of the board members, the remaining board members are responsible for appointing new individuals to fill the vacancies. If there is a recall to remove a majority of the board members, then the recall process must include a vote for replacement members.

Failure to Act

It's critical that the board follow the statute and meet within five business days of a recall meeting or receipt of a written agreement. If the board doesn't act, the recall will be effective despite any errors, such as an insufficient number of votes, duplicate ballots, or even former homeowners voting. Regardless of the reason for the recall or any tensions that may exist between homeowners, it is essential that the board hold a meeting to ensure proper procedure has been followed.

If the board fails to meet, homeowners can take additional steps by filing a petition. The Division of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business and Professional Regulation (DBPR) will review whether recall requirements have been followed. The review will be limited to the sufficiency of service on the board and the facial validity of the written agreement or ballots filed. If a board is trying to defend itself against a recall petition, the DBPR will not look kindly on a failure to follow the statute's requirements. The board can retain counsel to assist with this process.

Right to Refuse

The board has the power to refuse to certify the recall petition if the requirements aren't followed. Those requirements can be overwhelming if a homeowner isn't accustomed to dealing with detailed amounts of paperwork. Simple mistakes can be made. To make the process easier, the state created guidelines for board members that are available at: www.myfloridalicense.com/dbpr/lsc/documents/recallprocedures.pdf.

Believe it or not, instances have been reported of homeowners trying to vote twice, a person who no longer owns a home in the community attempting to vote, ballots with too many replacements selected, and even unsigned ballots.

If the board holds a duly noticed meeting and refuses to certify a recall petition, then it is required to file a petition with the DBPR for arbitration within five business days after the meeting. Depending on the issues raised and their complexity, the arbitrator may decide the issue without a hearing. If a hearing is required, the parties have an opportunity to call witnesses and present other evidence. The board should retain counsel if it is required to file for arbitration and for the arbitration process itself. The arbitrator will issue a written opinion determining whether the recall was properly performed. The arbitrator also may award reasonable attorneys' fees and costs to the prevailing party.

Resolving Differences

Board members always will be susceptible to removal for no legitimate reason, but it's important for all community members to remember that a recall election may not resolve the underlying differences that led to the recall in the first place. Whether the issue involved budgeting, renovations, landscaping, enforcement of pet restrictions, or failure to pay assessments, those differences might still plague the community.

Finding alternative means to resolve the disagreement can be beneficial and save money in the long run. Communication and transparency are essential for harmonious communities.

But, if tensions run high, voluntary mediation may be the solution. Keep in mind: The mediator is not a judge and will not decide the issue. He or she will identify the issues between the community members and help reach an agreement or find methods to resolve differences. The parties are usually represented by counsel at mediation to advise them of any legal concerns and to help draft a written agreement if a settlement is reached.

If no action is taken, underlying issues will remain and homeowners will most likely find themselves in another dispute, sooner rather than later.

Andrew J. Wozniak is an attorney with Wood, Buckel & Carmichael in Naples, Fla. ajw@wbclawyers.com.

© Community Associations Institute. Further reproduction and distribution is prohibited without written consent. For reprints, go to www.caionline.org/reprints. CAI is the world’s leading provider of resources and information for homeowners, volunteer board leaders, professional managers, and business professionals in community associations, condominiums, and co-ops. Visit us at www.caionline.org and follow us on Twitter and Facebook @CAISocial.

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