Thursday, October 15, 2009

You've just been served with a recall petition....now what?

Florida law provides that any member of the Board of Directors may be recalled and removed from office with or without cause by a majority vote of the total voting interests of the association. This vote may take place at a meeting but it is generally taken by written ballot.

If you've gotten to the point in your community where a recall is being pursued, you already have communication problems and other issues afoot. Your immediate concern is how to respond to the recall petition but after that your board will have to figure out why some of your members no longer want you at the helm of their organization.

Recall can be an ugly process and believe it or not sometimes people will bend the truth to entice a signature on a recall ballot. That does not, however, serve as a defense to the recall. The directors do have the option to rally support and collect rescission ballots up until the time that the recall ballots are served on the board.

Once the board is served by certified mail or personal service of process with the recall ballots, the clock begins to run. Service on only one board member or on the association's registered agent is sufficient to constitute service on the entire board. The board must notice and hold a meeting within 5 full business days following service of the recall ballots. At that meeting, the Board will vote to either certify or not certify the recall. If the recall is certified, the recalled board members are removed immediately and are given 5 full business days to turn over all records and property of the association.

If the recall is not certified, the Board must file a Petition for Recall Arbitration with the DBPR within 5 full business days following the meeting. The association must pay the costs to file the Petition for Arbitration. If the Board votes not to certify the recall, the minutes of the board meeting must list with specificity the reasons for not certifying. Detail is the key in this regard and may have a huge impact on the outcome of a recall arbitration.

Tomorrow we'll talk about some common pitfalls that occur during the recall process and how voting certificates often play a role in those problems.

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