Often times, community association board members have to make difficult decisions. Sometimes, their decisions affect the entire community equally, and at other times, decisions made by the board may negatively affect only a few or even just one member. As a result, and even in the best of times, not everyone is always happy. Unhappy association members can express themselves in several different ways. If it’s close to election time, unhappy members might decide to challenge the incumbent board members. But, if the next election is months away, a board member, or even the entire board, may find itself subject to a “recall” petition. When the result of a recall action is approved by the association’s board or by the Division of Florida Condominiums (the “Division”), it is referred to as “certified”.
Any condominium or homeowners’ association board member may be recalled and removed from office, with or without cause, during a special members meeting by the vote of a majority of all the members who were entitled to vote the member into office. In its “Recall Guide” the Division explains that “the procedural requirements for a recall at a meeting are challenging and complex. Therefore, a recall at a meeting is seldom successful and owners are strongly discouraged from attempting a recall in this manner.” With that in mind, another method to carry out a recall is by a written agreement signed by a majority of all the members who were entitled to vote the member onto the board. However, in both instances, there are unique and technical requirements that must be followed. Failure to do so will result in a failed recall, meaning that the recall action will not be certified.
BOARD MEMBERS BEWARE: Interestingly, even if the recall action would have failed, if the board fails to follow the unique and technical requirements as set out in both Florida Statutes and the Florida Administrative Code, then even what would have led to a failed recall could end up being certified (approved) by the Division.
The key to avoid such a result is for the association’s board to understand its need to act with a real sense of urgency. An association’s board of directors must hold a duly noticed board meeting within five (5) full business days after adjournment of the special members meeting or within five (5) full business days after the service of the written recall agreement upon the board. The purpose of this board meeting is to determine whether to certify or not to certify (approve or not approve) the recall. Failure of the board to follow this extremely important step will lead to a technical default and the recall will be certified. If the recall is certified, then the recalled board member must turn over to the board any and all records and property of the association in their possession.
Alternatively, if the board determines not to certify the alleged victorious result of the recall, the board MUST, within five (5) full business days after the board meeting, file a recall petition (technically called a “Petition for Arbitration”) with the Division. Failure to do so could again likely lead to a successful recall, even when the recall action would have otherwise failed! If the arbitrator certifies the recall as successful, the recall will be effective upon mailing of the final order of arbitration to the association.
If the recall of a board member is certified, that board member is removed from office. If a majority of the board members are successfully recalled, the replacement candidates are elected by the unit owners during the recall process. If less than a majority of the board members are recalled, then the association’s members do not elect replacements, but rather the remaining board members fill the vacancies created by the recall by appointing replacement board members of their choice.
Recalling an officer of the association is a whole different story. What can a board do when it’s unhappy with its president, or any other officer? Must the entire community be involved in the recall process? The answer to this inquiry is a simple and resounding, “NO” (most of the time). Typically, and subject to the association’s governing documents, each officer serves at the pleasure of the board. In those instances, it is the board members of the association who decide the association’s officers at a properly noticed board meeting. When a community, or its board, is unhappy with an officer’s job performance, then the association’s board can vote the officer out of office. Of course, that person is still a voting member of the board, but their role as officer of the association has changed.