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Feldsott Lee Pagano & Canfield
Orange County Homeowners Association Law Firm

Recall Elections - The Kind of Stuff Lawsuits Are Made Of

Association elections can be heated, and none so much so as a recall election. Perhaps because emotions are high, or because of the rather complicated statutory framework associations are required to follow, recall elections are more likely than any other association vote to land an association in court. To avoid the perils of those who came before you, follow the below the suggestions:

1. Pay Attention to the Petition. Recalls can be emotional, but take the membership petition seriously. The members have a right to call a special recall meeting by submitting a petition signed by at least five percent (5%) of the total members to the board. The board should avoid looking for technical defects in a recall petition and, instead, immediately notify the association's legal counsel.

2. Watch the Clock. Receipt by the board of a valid recall petition starts two different clocks. "Clock 1" relates to noticing the recall meeting and requires that notice of the meeting be mailed within 20 days of receiving the petition. This notice should also include a call for candidates should the recall measure pass. "Clock 2" refers to the meeting date and requires that the recall meeting take place not less than 35 days and not more than 90 days from the date the petition is received. Throw in the Corporations Code requirement that notice of meeting be sent 20 to 90 days before the meeting (or any different notice requirement contained in your bylaws), and the requirement that ballots be distributed to the members at least 30 days before a meeting, and what you get is a lot of clocks. This is why it is important to immediately notify counsel when a recall petition is received.

3. Know the Vote Requirement. The number of votes required to pass a recall measure is determined by the Corporations Code and depends on several factors, including the size of your association, whether or not the entire board is being recalled, and, if not, whether cumulative voting is authorized by your bylaws. In associations that utilize cumulative voting, unless the entire board is being removed, a director may not be removed if the votes cast against removal, or not consenting to removal in writing, would be sufficient to elect the director if voted cumulatively at an election at which the same total number of votes were cast and the entire number of directors were being elected. A rather complicated formula is used to determine the number of votes needed to defeat recall of one or a select few directors. Associations are wise to rely on legal counsel to do the math.

4. Master the Meeting. The day of the recall meeting, the inspector of elections should first establish whether quorum has been met using the same quorum requirement set forth in the bylaws for all other membership meetings. If quorum is not met, you may anticipate a motion from the floor either to permanently adjourn the meeting or to adjourn the meeting to a later date at which a reduced quorum requirement may apply if provided in your bylaws. Any such motion to adjourn passes by a hand-raise vote of those members in attendance. If a quorum is established for a recall meeting, then ballots will be counted. A ballot for a recall meeting should contain two separate initiatives: (1) a vote for or against recall, and (2) a vote to elect one or more replacement directors should the recall measure pass. If the first initiative passes, then the votes cast for the second initiate should be counted, tallied and reported by the inspector of elections. General notice (i.e., positing, etc.) of the tabulated results of the election must be given to members within 15 days of the recall meeting.

5. Stay Impartial. The association, as an entity, has no stake one way or the other in the outcome of a recall election. A recall election is essentially a battle between the incumbent directors and the challengers who would like to take their seats. While the incumbent directors, as individuals, obviously have a stake, the board, the association and the managing agent should all remain neutral.

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