Friday, October 16, 2009

Voting certificates and other common recall pitfalls.

If you just learned that your members are trying to recall you as a director, your head is probably spinning. Keep it in place and remember that this is one of those times where it makes sense for the board to call your association attorney immediately and not try to muddle through the process yourselves.

Some of the common pitfalls boards encounter when dealing with a recall are:

-Failing to timely and properly notice and hold a board meeting to vote on the recall;

-Failing to establish a quorum at that board meeting;

-Failing to list specific reasons in support of their decision not to certify (any reason for not certifying which is not contained in the minutes of the board meeting cannot later be raised in the Petition for Arbitration so you've got to get this right!);

-Failing to timely file a Petition for Recall Arbitration; and

-Voting Certificates

Voting Certificates may be the most contested items in any recall arbitration. Here the old adage proves true: If You Don't Use It, You Lose It!!

Voting certificates are forms submitted to the association's secretary for units owned by more than one person, or owned by a corporation, partnership or other entity to designate the person authorized to vote on behalf of the unit if the association's governing documents require the use of a voting certificate.

If the governing documents require the use of voting certificates, the association must provide evidence that it has routinely enforced this requirement in order to deny any recall ballot because it was not signed by the authorized voter. In other words, the association cannot reject a recall ballot from a person from whom it has accepted votes on other issues in the past.

While a Petition for Recall Arbitration is pending, the board carries on business as usual. If the recall is later certified, the actions taken by the board during the pendency of the arbitration are presumed valid. If less than a majority of the board is recalled, the remaining board members appoint members to fill the vacant seats. However, the board may not appoint any of the recalled members to fill those vacant seats. If an election occurs during the pendency of a Recall Arbitration, the arbitration will be deemed moot.

In tough times, people question the role their leadership played in their current suffering. Are you hearing more grumbling about potential recalls? The best way to avoid being in the position of having to defend yourself from a recall is to insist on transparency and pro-activity in all your association operations.

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