Take It To The Board with Donna DiMaggio Berger
Take It To The Board with Donna DiMaggio Berger
A Recall Roadmap -- From Petition to Resolution, with Becker’s Jonathan J. Ellis
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Recalls are where community politics get real. When a board receives a Recall Petition, emotions run high and so do the legal stakes. In this week’s episode of Take It To The Board, host Donna DiMaggio Berger sits down with Becker shareholder Jonathan J. Ellis, Florida Bar board-certified in condominium and planned development law, to demystify what drives recalls, how they actually work and how to steer a community through the process with as little pain as possible.
Donna and Jonathan break down the two Florida recall paths—membership meeting vs. written ballot and why the Florida Department of Business and Professional Regulation’s (DBPR) forms and “facial validity” standard matter so much. You’ll hear the critical do’s and don’ts as they also cover the required five-day Board meeting to certify, what counts as a valid rejection of the recall effort, common traps like DocuSign signatures, and why the Division rarely polices the “story” behind a signature unless fraud is obvious.
Beyond the mechanics, they focus on strategy. Managers should stay neutral; boards must communicate early and accurately, with data that explains why tough choices—reserve funding, special assessments, construction projects and life-safety repairs—can’t wait. Donna and Jonathan weigh when to fight, when to pivot, and when to accept a valid recall with grace. You’ll learn about timing windows around elections, why recalls are harder to win than elections, and how to navigate developer-appointed seats and layered voting interests. They round it out with practical transition tips for new boards: bank resolutions, records turnover, and avoiding long-term contracts that handcuff future boards.
If you’re an owner building a recall effort, a director sensing one, or a manager trying to stay above the fray, this conversation gives you a clear, candid roadmap.
Conversation Highlights:
- Why recalls happen in community associations, from governance breakdowns and personality conflicts to policy disputes and allegations of misconduct.
- When pursuing a recall makes sense versus waiting for the next election cycle.
- A clear walkthrough of how the Florida condominium recall process works and what to expect at each stage.
- The pros and cons of voting on a recall at a meeting versus using a written agreement.
- How boards and managers should communicate during a recall effort while avoiding defamation or retaliation risks.
- What boards can and cannot do when responding to a recall and how authority is handled if a dispute arises.
- How to evaluate whether to certify or challenge a recall based on defects, evidence, and regulatory scrutiny.
- Common mistakes owners and boards make that can invalidate a recall or make one more likely.
- Practical steps to maintain continuity of operations and keep the community running during leadership transitions.
- Governance reforms and best practices that can help rebuild trust and prevent future recalls.
Related Links:
- Article: Florida bill would let homeowners recall community development district boards
- Online Class: Board Certification: Condo/Co-Op 4-Hour
- Online Class: Board Certification: HOA 4-Hour
Setting The Stage: Why Recalls
SPEAKER_00Hi everyone, I'm Attorney Donna DiMaggio Berger, and this is Take It to the Board, where we speak condo and HOA. Welcome back to Take It to the Board. I'm Attorney Donna DiMaggio Berger, and today we're unpacking one of the most misunderstood and most emotional events in a community association's lifespan, recalling board members. Recalls can be a safety vowel for communities when trust is broken down, but they can also be weaponized by people with agendas. What triggers a valid recall? What does the process actually require? And how do we protect the community from chaos while honoring owner rights? To guide us through the legal guardrails and the practical realities, I'm joined by my partner, Jonathan Ellis. Jonathan is a shareholder in Becker's condominium cooperative and HOA practice group based in the firm's Tampa office. He's board certified in condominium and plan development law by the Florida Bar and brings more than three decades of experience advising condominium and homeowners associations throughout the state of Florida. Today we are going to talk timelines and thresholds and highlight some warning signs that a recall might be in the planning stages. So with that, Jonathan, welcome to take it to the board.
SPEAKER_02Thank you. Thank you.
SPEAKER_00All right. So this is an emotional topic. You know, we we like to say as association attorneys that the dreaded two most dreaded words are special assessment. And I think that's true for owners, but I think for board members, the most dreaded word is recall, possibly. What do you think are the main drivers of a recall?
SPEAKER_01The drivers from a recall vary to anything that's that's possible. But there's normally a couple of things that you see that lead to a recall. Number one, you just have certain bad board members that don't have their finger on the pulse of the community, and they're sort of steamrolling it, and they just wind up in one too many confrontations, and you wind up having an organizing by the members saying, Well, wait a minute. I'm not sure this person represents us. Number two, special assessment. For an assessment. Have a special assessment, have a meeting, and not do an absolutely solid job explaining to your membership why you need more money and have a number of people there that are organized and can sort of go head to head, going, Well, why are you people at the head table anyways? We have a better group that can do it. Sometimes you have somebody that for whatever reason, you adjust the board has wound up picking a fight with, and that person has substantially solid organizational skills, well connected in the community, and starts to raise issues and is able to get a following within the uh community. It can be any of those things or anything else that can arise at a general board meeting.
Democracy Versus Unpopular Duties
SPEAKER_00So if I'm hearing you, first of all, make sure you know who you're fighting with, because you might pick the fight with the wrong person. They might be somebody who, as you said, has a lot of community support, has or you know, a high level of organizational skills. And if you rub them the wrong way, you know, you may wind up with a recall. The the point you made, John, about the special assessment. I'll talk about this a lot in the context of all the legislative changes we've seen over the last few years and the costly legislative changes we've seen tied to mandatory engineering reports and mandatory reserve funding. I often thought maybe the legislature should have put a pause on a recall process if members are attempting to recall a board that's passing special assessments or doing things that might be unpopular, but they are things that need to be done to comply with the law and fulfill the director's fiduciary obligations.
SPEAKER_01So there's there's two aspects to this, if I if I if I can break it down. Number one deals with the special assessment. I can't tell you the number of, you know, even recently where you've had members of a board recalled over special assessments, whether it's an extraordinary amount of money as a result of SEERS analysis, reserves, railings and something like that, where another board is just absolutely convinced, or people are in the association, absolutely convinced that they can reduce it. They wind up having a successful recall because they promise everybody they're going to be able to reduce assessments. And all of a sudden, now that they're at the head table, they realize they really can't reduce assessments because the other board wasn't doing anything wrong. They were obligated to do this.
SPEAKER_00I'm sure they give apologies all around, right?
SPEAKER_01You get apologies, you you start to get excuses. Well, this is this way, this was different, or what you may have. The flip side is the recall. You know, you've got to be very careful with the legislature saying you can't recall something. I mean, as most people know, in its own way, an HOA or a condominium association is a democracy. People vote. They either vote their percentage of their unit or they vote the unit that they have. And if they voted, enough people who equal the majority of the community want somebody else to run it, they have absolutely that right to say, look, we want somebody else in. And it's a majority plus one for the recall. So if you can't convince a majority of your unit owners or half your unit owners plus one that you should stay in or they want somebody else, they then, the unit owners, should be able to put in who they want, regardless of when the election is or anything else. To the extent that you can't convince half your unit owners plus one that you should stay in, or more importantly, half the unit owners plus one don't want you. Then it's the time to set aside rather than try and explain why and why you're right and why they're wrong. It just is a base level democratic type of institution where a majority controls.
Misinformation And Elderly Signers
SPEAKER_00Yeah, and I love that. And if democracy worked perfectly, we'd all be in great shape. But let's talk about that convincing that you just mentioned. I have heard in some cases where people were asked to sign recall petitions, particularly elderly people in some of our communities, and they had no idea, John, what they were being asked to sign. Have you ever come across that problem?
SPEAKER_01We come up with it all all the time. And you usually hear it from the individual board members on under two occasions. One, they wind up getting a recall petition. Or number two, they wind up knowing that this is going, you know, something's going on. Question is well, they're accusing me of stealing money. That's not true. Do we have to accept that recall petition? You know, they've lied about this. This is based on a false premises. But the answer is if somebody has signed a recall ballot, that ballot counts unless it's withdrawn prior to being served. So the answer is that when you try to sort out whether a recall took place, you're not there trying to measure what was said, who believed what, was there a false impression? It just goes, is there half the members plus one that want the recall for whatever reason?
SPEAKER_00I agree with you. The the false premise, and I want to ask you in a few minutes about that. That's something that can be addressed through proper board communication. But let's say Mrs. Smith, somebody knocked on her door and they said, We want to do a petition for you know Friday night cocktails in the clubhouse. Can you sign here? She signs. She's not necessarily knowingly signing a recall petition. Is there anything that can be done about that? If she doesn't know and you don't reach out and she doesn't withdraw that signature beforehand, there's very little of anything that can be done with it.
SPEAKER_01You know, the the DPPR is pretty clear. When they're looking to determine whether to certify a recall, which we'll get into a little bit, they're looking, is the recall valid, facially valid? They're not going to dig in in a great deal to try to determine was this wrong? Now, obviously, if if there's some kind of massive fraud going on, you know, you're you're you're you're moving signatures from one document to another or something like that, that may be a different issue. But generally, you're assuming the confidence of your owners, and that if they want to sign something without reading it, this is just part of the law in the state of Florida. You're signing it, you're sort of stuck with what you you've signed, but with the exception of a recall, nothing says prior to it being served, you have absolutely every right to withdraw the recall or withdraw the bat your ballot on the recall.
Florida Recall Paths: Meeting Or Ballot
SPEAKER_00Okay, and that's one option is the recall ballot. Can you walk us through the process in Florida? I know we've got people listening in other places, but Florida's kind of the granddaddy of condo law. So can you walk us through a Florida condominium recall? And let's say they're recalling the entire board.
SPEAKER_01So there's two ways you can do a recall. One, you you can do it through a meeting, meaning you have 10% of the members sign a petition indicating they want a meeting on a recall, and then you have a meeting where the membership can vote on it, and depending what the vote is, how you put in new members. If you go through the DVPR materials and in practice, having a meeting to do a recall is difficult. It doesn't necessarily work. People don't show up when you think you have a potential for a recall. And even the DVPR suggests not to do a recall via a meeting, but rather to do a recall by written ballot.
SPEAKER_00If we were going to do a meeting though, Jonathan, who would prepare the meeting notice in the voting materials?
Forms, Names, And Fatal Technicalities
SPEAKER_01Usually you would have the per you would have somebody designated on the recall committee or a board member who was not subject to the recall that could prepare it and put it to together. But unless you've got a small condominium. So if you have a small condominium with 10 unit owners, you know, six of them want to remove the three that are in charge, you know, or one of them that are is in charge, that's something that may be able to work by a meeting. But it also has other problems. The meeting has to be scheduled from 10 to 60 days, depending on where your notice provisions are. And all these things become stumbling blocks in order to get it done. If you do it by written ballot, and the DBPR has a form to do it by written ballot. So anybody who's dealing with a recall, whether it's an HOA or a condo, you want to make sure you get the right form. One is under 718 for a condo, one is under 720 for a uh for an HOA. It's a form that's pre-printed. So you know this is an acceptable form. There's no reason why you need to create a document that already exists by the uh, you know, by you know, by the uh division. Number two, you got to put in the name of the association. And get it right than you think. Yeah, you want to get it right. So it's worth checking your documents and checking, you know, Sunbiz, you know, with the Secretary of State and making sure you've got the actual correct name. If you're going for Boca Vista Condo one, you don't want to have it listed as Boca Vista Condo 2. On the other hand, if there's some minor misspelling, you may be able to slip by with that. Then, number two, you want to have the names of the directors you want to recall. And take some time when you're doing it. Try to get the names right. Try to get the actual names of the people you are recalling. And the easiest way or the best way I've always said to do that is if you go again to the Secretary of State's records at sunbiz.gov and you pull up the associate, the the name of the association. You can look at the most recent annual report. And if you're not sure what name it is, you generally can use the names that are on what's been filed with the Secretary of State. Try to stay away from nicknames. Everybody knows this person is Sonny, but that's not his real name. You know, try to get the names are correct. The trick then becomes to put the names of the people that you want to recall. Next to the names are boxes. Be careful. You can't, if you are moving forward with a recall, check the boxes for the unit owner. The unit owners themselves have to mark the boxes themselves. And one of the ways you can knock out a recall petition, you know, a recall ballots, is that they're pre-marked or they are pre-checked. And what happens a lot of times is you'll turn around and you'll have in a large community four or five people that are all working together on the recall. And they're all sort of divvied up on, you know, this area, you'll cover these floors or you'll cover these buildings, and I'll cover these. And you have your five people, you give them the ballots, and one or two people decide it's gonna be a lot quicker than if I could just check the boxes for everybody, or let me just have them pre-checked. If the unit owner doesn't actually take the time to check the box, then you have a problem. Now that can be hard to look at when you're looking at a facially valid ballot.
SPEAKER_00I was just gonna ask you that. That could be hard to prove. I mean, I guess if all the boxes are checked in blue and the person signs in black ink, you could say, hmm, did you change pens midway through? But if it's the same color ink, how would you prove that?
SPEAKER_01Well, sometimes you can see it because you'll notice that somebody number one has pre-printed the balance. And they have some kind of X that has been placed on when, you know, before you, you know, typed onto it. So they all look uniform. They all are the same X. Other times somebody will turn around and they'll take one ballot and they'll put the X's on the ballot or the check marks on the ballot. So now you have 12, you know, or 15 ballots. They all have the identical different X's or check marks on it. And you can look at it and you can say, okay, these things are absolutely identical. And if you can establish that, the division a lot of times will be willing to accept that as a basis not to go forward with the recall or to declare the recall uh invalid. In the alternative, uh, I mean that's that that's one of the areas you want to be careful. There's some kind of aspect going, let me just make it easy. So the unit owner has to sign. Have the unit owner and make sure they check the boxes that the unit owner wants to check. Because the unit owner has to be given the decision. Do they, you know, if you're recalling three people, does the unit owner really want to recall all three? For all you know, the unit owner only hates the president or only hates this one board member. They want that board member off. They actually like the other two, they have the right to choose one, two, or three on a three-person recall. And by pre-checking the box, you're removing the ability to choose.
SPEAKER_00And you're really only saving three seconds of time. Correct. Because it doesn't take long to check a box.
SPEAKER_01Then on this, the next part of the ballot, you wind up having an area in that you can put people in that you want to have replace the directors that are being recalled. But there's a couple of rules to that. Rule number one: if you are recalling less than a majority of the directors, the remaining directors can vote to appoint the new directors, or they, if they want to, can even schedule an election and have an election take place as they normally go forward along those lines. And that can work. But usually those people that are going through the process of uh a recall of one one or two or less than a majority of the board have faith in the remaining members of the board that are not being recalled.
SPEAKER_00Well, is that an option, Jonathan? So let's say it's a five-member board. They're only replacing, they're only recalling one person. They have an option to either fill in the name of who they want to replace or notes.
SPEAKER_01No, no, no. You're leaving it up to the remaining members of the board to go ahead and appoint somebody.
SPEAKER_00So what if they recall Sam and the remaining board reappoints Sam? Can they do that?
Replacing Directors: Majority Rules
SPEAKER_01No, there's a rule that says you cannot reappoint somebody that has been recalled. But if it's less than a majority in the board, the board has the authority to go ahead and do an appointment, or if they want to potentially call an election. If you're removing the majority of the board, so on a five-member board, you're removing three. On a seven-member board, you're removing four or more. Now you can put in the names of the people that you want to have fill those positions. And at that point, the same thing goes again. Don't check the boxes next to the names on the form. Let the owner who's signing it check those names, you know, or check the boxes next to those names. And then if the if the recall is certified or accepted, those people then that you've chosen will take over on the board of directors. And that will have removed it, and those people are making calls. So if it's a majority of the board, you are then allowed to go ahead and indicate who you want to have take those spots. You may say, look, John, well, that doesn't make any sense. You know, why can't if I remove one person indicate who I want to take over? Answer is that's just not the way that the statute itself is written. And then the last part, and this is the part I think that is in arguably potentially the most difficult part when you are the one that's walking around with the recall ballot. You have to make sure you have the appropriate person or people signed the ballot. So I can't tell you the number of times that you wind up having, say, a hundred-person association and you get 53 ballots. And now you start to look at them as the lawyer, they get sent to you, or you happen to be on the board and you look at them and you realize six of the ballots aren't signed by somebody who actually owns the unit. So you'd be surprised sometimes in an association who owns a unit. And if you don't have rental restrictions or you're not keeping track of those, you know, people may be renting and they just don't want anybody to know. You've just assumed they happen to be the owner. Sometimes you wind up having parents that are living in the unit, but it's their children that own the condo, where you have, you know, adult children that are living in the in the condo, and the parents own the condo. You've got to have the owners actually sign it and rest assured that if you are going through a contested recall, somebody is going to compare those signatures with the public, not only with the property of producer's records, but even with the official records to make sure everybody is on that deed.
Who Can Sign: Owners And Certificates
SPEAKER_00Absolutely right. You know, most re it's my experience as well that most recalls are effectuated by people walking around either at the pool or knocking on doors. And unless you know every single one of your neighbors, whoever answers the door could be a renter, as you said, could be a long-term guest, uh, could be a family member, could be anyone other than the unit owner. What about units owned by LLCs and multiple people? Do you need everybody? Let's say a unit owned by three siblings who inherited from their mom. Do they always sign the recall ballot?
SPEAKER_01Now you start to get into what are your bylaws saying and how do you conduct general uh elections? And you even get into it when you're dealing with a husband and a wife who own the property and retirees if both of them have to sign off or not. So to give you a couple of examples, you know, usually a number of condos will have specific rules dealing with corporate entities that own units, whether it's an LLC, it's a corporation, what have you, and they will file or provide the association with a certificate or a voting certificate indicating this is who votes on behalf of the entity. If you have that document, which is a voting certificate, and you have enforced that voting certificate in the prior elections, the person who is signed off on that voting certificate needs to be the person that signs the recall. So if the answer is it's the, you know, the 85% shareholder, or it's this person who's the secretary or the manager of the LLC, even though they may have four, this is the person that's on the voting certificate. That's the person that needs to sign it. And you want to be careful with that because a lot of times you're just clueless on how these things are owned as you're you're you're going around. Sometimes it's owned by an LLC, and the owner who owns the LLC, it's a single member LLC or one of two of them may be living in it. Sometimes it's just being rented and nobody is aware of who really owns it, except for the fact that that's the official address in the records of the association. And whoever's doing the recall was bright enough to ask for the actual list of who the owners are, what the address is and how to communicate with them, and you send it off. Number two, if you can't get to the person, nothing says you can't have them do an amended voting certificate at the same time that they're filling out the recall and then deliver the amended voting certificate to the association. If the answer is, boy, you know, we've never sort of looked at this at all over the last decade on the last 10 elections we've done, we do require voting certificates. We have voting certificates for about 25% of the units, but Now we're in the middle of a recall, and now all of a sudden we're going to invoke this voting certificate rule that the DDPR is set as a no-go.
SPEAKER_00If I'm hearing you correctly, uh look, I don't think you stop short once you hit a majority and turn it in. I think you want to keep going to give yourself a cushion.
SPEAKER_01We always give the advice if you are doing a recall and you need 50% plus one, make sure you got enough that you're going to overcome those that are issues, you know, that you don't know about. So why not go for 60 or 65%, depending on what you can get, and give yourself a cushion in case the board starts looking at these things and starts knocking certain ones out? Sometimes they're valid, sometimes the board just knocks them out and they're not a valid reason. That creates a whole other problem.
Strategy: Get A Cushion And Counsel
SPEAKER_00Jonathan, in your experience, how many of these recall committees are assisted by counsel as opposed to recall committees trying to undertake this process by themselves?
SPEAKER_01You don't know which ones generally do it on their own until it's it's served. We recommend if you're going to do it, you're going to spend, depending on how big the association is. If you again, so 10 persons association and six people just are upset at one person, that's pretty easy to do. And if you get it wrong, it's easy to go back and get those. By the time you start dealing with a larger one that you're investing time, take the time and obtain the advice of counsel. And I always say to when I when I get called to represent the recall committee, I'll send them the form or I'll tell them, give me the names of who you want to recall, we'll prepare and we'll get the form. We'll make sure if it's a condo, it's a 718 form. If it's an HOA, it's a 720 form. Notwithstanding, the division may still let that slip if it's under the wrong statute because you still have sort of a substantial compliance. Let's make sure we get the names right, let's check it, we'll prepare it for you, we'll get it to you. We will look at it and we'll go over them before we wind up submitting them or serving them. We have slews of issues on little technical issues that people fail on when they're they're not using counsel and they're trying to do it on the own, their own. They get an absolutely perfect recall. They got enough people that are signed off on it. It's going to work. And now you have to serve it by certified mail, or you have to use a process server. And for whatever reason, they drop it off at the office of counsel two days before the holidays, and nobody sees it. And now all of a sudden, you don't necessarily have it delivered appropriately. And so there's other things that come into play on this. But we we recommend, if you're going to put in a lot of time, tan counsel, it is not expensive with good counsel to get you the tools that the unit owners need to do the recall because you're not dealing with a lot of legal work in putting the recall together. Where the legal work comes in is if the recall's challenge, then you've got to look at it and try to make a determination whether there's a valid challenge or not.
SPEAKER_00Well, so a couple of things. One, I know when you're saying use counsel, you're not talking about retired New York personal injury attorney, Jerry, who's in the community or on the board. You're talking about a Florida licensed active attorney, preferably the community association attorney who can assist. Because I'll tell you what, look, we represent associations, a lot of associations, and we know when they get served, we're working with them, we're helping the board. So the board has the benefit of having a Florida licensed community association attorney looking at your recall paperwork.
Why Boards Should Sometimes Yield
SPEAKER_01Correct. Look, these things, if they're going to be challenged, a lot of times they're not challenged. Sometimes, you know, you'll wind up with a board that gets served with a recall. They look at it. Answer is I could really care less. If they don't want me, I'm out of here. You think I'm calling a recall meeting? Here's my resignation. But the answer is if they want to fight it, and I think you started off this this way, Donna, is you know, what makes this such an issue? And the issue is people that are on a board of directors have put on an awful lot of time into this. And when they get recalled, it means that for whatever reason they put in this time, and now they realize their neighbors or the unit owners within the community just don't want them there. And it just hurts on a number of different levels. And we've even seen it in certain recalls where the recall board, more than one person, will turn around and sell their unit in the next 60 or 90 days or put them up on the market. Because if the answer is my community doesn't want me on the board of directors, I don't want to be in the community. This is that heartbreaking or that hard from them. But certain boards will look at these things very carefully. And then as the lawyer, you have a duty and responsibility when you're representing the board of directors. And I always say this you need to look at these ballots, even though you've worked with this president for the last seven years and understand look, I understand this may not be fair. I understand that you may not be happy with this, but I'm going to tell you, I think that this is a valid recall. And I think at some point, nothing prevents you from rerunning at the next election or doing something along those lines. But be careful about unnecessarily fighting a recall on which you're not going to prevail. Or as I always say, it's unlikely.
SPEAKER_00I think that's great advice because a scorched earth policy for a recall that on its face looks like it's checked off all the boxes. What is that, what does that do? That seems to bolster the recall committee's efforts in the first place to say, look at our our look at our assessments that are being squandered when we've effectuated this recall properly. So I think a grateful departure, and this is true personally, it's true professionally, and it's certainly true in your community. I've seen, Jonathan, people who were recalled and then wound up being very grateful. Okay, you got it. And then a couple of years down the road, they're back on the board.
Spotting Recalls Early And Apathy
SPEAKER_01Twenty years ago, I dealt with my first recall in a homeowners association. And for whatever reason, there was a group of unit owners that were well able to organize, wound up obtaining enough ballots to recall the entire board. And two to three weeks later, the board that had been recalled recalled that board. I mean, it was just boom. We made them, as you started off earlier, and said, Well, what happens if people sort of get hoodwinked on what they're signing and they don't understand it? And by the time it was over, they sort of realized, well, wait a minute, who did we vote in? This stuff is not necessarily true. And the board was just caught blindsided. But good boards have their fingers on the pulse of the community, number one. Number two, it's awfully difficult to do a recall without the board finding out that you're doing a recall. Because somebody is going to come to them and say, I've been mailed, somebody's come to my door, they want me to sign a recall petition. And then you as the board have to make a decision. Is this something that I really need to address head on? Or is this just inevitably going to fail? We have in a number of times we'll have members who will come to us and they want to do a recall of the board and we will give them a proper advice. But part of the advice is, hey, this is potentially going to be a lot of work. And if you can't get a majority, you're just wasting your time. You've got to really have a plan to get a majority. And the larger a community is, the substantially harder it is to get a majority. So when you're dealing with a 1,500-unit HOA, you need 750 plus one. When you're dealing with a large condo or a multicondo and you start trying to do a recall, and there's a number of people that are living in South America, and there's a number of people that are living in Canada, and there's a level of apathy and nobody really cares, you're just sort of spinning your wheels. On the other hand, if in fact you start to see this is getting traction, I think then the board needs to figure out how do they want to handle it. You know, number one, is this an issue that the board, as a board, should officially address?
SPEAKER_00You know, sometimes, Jonathan, it's the board that has one rogue member on the board. And as we know, the board cannot re-eject a member from the board. They can remove him or her as an officer. So sometimes it's actually the board that's kind of hoping that a member in the community starts a recall effort to remove that problematic board member.
Managers Stay Neutral
SPEAKER_01Not only is it that, we have had boards where the president and the vice president comes down and meet with you and wants to figure out how do they remove one of the board members. And you have to explain to them this is how you do this. But if you are association counsel, we're not advising you individually on how to do a removal of a member. But these are the statutes you may want to look at, or this is the counsel you may want to talk to, or the flip top societies, if you're not representing the association, you could have two board members come to you and say, Hey, I got to tell you, you know, there's five of us. We hate this one person. How do we do a recall? And then they do the recall and you have to explain to them you are certainly capable of being on the board to do a recall, but make sure you don't cross this over to your official board capacity on what you're doing. When you're out there, you want to be doing this individually, you want to be doing this on your own, you want to be careful what you're, you know, what you're saying. And we've had these issues where the board sometimes is the first to realize that this rogue board member is just a problem, and the recall is really the only fix you are left with because you're not allowed to vote them off the board.
SPEAKER_00This gets so political. So you've talked a little bit about how we as association counsel navigate those politics because again, you don't know which way this is going to go. What about the management team? How do they navigate this? Because they do get involved in terms of accepting the service of process, but even before it gets to that point, people coming up to the manager and saying, should we vote yes on this recall? I've I've heard that happen before.
Messaging Without Fueling Fires
SPEAKER_01You know, managers have a level of what they can say and what they can do. Our advice has always been to the managers. The recall is not your issue. This is an issue between the memberships. Just like you're not going to give advice on who to vote for in a general election, your job is not to get involved in the middle of a recall. It doesn't mean you can't advise a board, you know, of emails you're getting from unit owners. And it doesn't mean that you can't communicate appropriately or work on the messaging with the board of what you're doing. But a good manager doesn't take a position on a recall. And they know they shouldn't take a position on the recall. As soon as they do, and if that recall succeeds, they're out. They're neutral. It's not always a management issue of why the recall is taking place. Now, there are times, by the time the recall is done, you know, two weeks later the management company's fire, and a week later they've got new council and everything, you know, and a new landscape company and a new, you know, every every type of vendor they could possibly have. But a lot of times good managers don't get involved in partisan issues. They provide the information and they have these things take place between the members themselves, and their job is to manage the community, not to try to determine who wins the recall or whether a recall succeeds or doesn't succeed.
SPEAKER_00In the larger communities, it can take quite a while to get the sufficient number of signatures. What, if anything, should the board be doing in terms of messaging? And let's say they were accused of, you know, not vetting the proper contractor for the concrete restoration project, not uh preparing a budget that's to the liking of the membership, whatever it may be. Do they come out of the gate and do they address those issues and then go out and try to get people not to sign the recall for petition or to withdraw their signatures?
Five-Day Clock And Certification
SPEAKER_01So there's a couple of ways to handle it. And when when we advise the boards on what's happening, the first thing they have to do is make a determination whether this really has a chance for success or not. Because to the extent you wind up having four or five percent of the community upset with the decision that the board has made and the majority of the community pleased with it, the last thing you need to do is to reiterate it again and again and again what the issue is, because all you're doing is you're feeding fuel to a fire that doesn't really exist. So the first thing you need to gauge, is this a real problem within the community? Or do I have a few very local unit owners who are not pleased with this and are walking around, but in reality, it doesn't have any chance of succeeding at any level. Number two, if there's a legitimate messaging problem, you need to give some thought on how you message it. Meaning that that can be done at a board level. If there's enough people that are upset with a special assessment, sometimes it's not a bad idea to turn around and give a, you know, sort of a lengthy article. You don't necessarily need to go point by point by what somebody else sent out, but nothing says you can't put together what you want to give the membership, which shows the basis and the reason for the special assessments. This is the reserve study that we receive. This is what the statute requires. This is why we have such an increase. I always say a lot of times the board will come to you and they'll say, okay, this is what we received. They're complaining about us. We want to go point by point on this. And there's a lot to be said with that because the document is filled with a number of misstatements. But you want to talk to the board about that because you've got to be careful. By the time you respond to six misstatements that were in something that some unit owner sent out, you've got to ask yourself, okay, you're going to respond to this. After you send out the board response to this, they're going to give you another seven reasons why you're wrong. And now you're going through a black hole of time of trying to go point-counterpoint to each one of these issues. So you want to turn around and you want to work on your messaging, but your messaging doesn't always want to be point-counterpoint for that person who's criticizing you. Two, if you're going to do it, you need to be right on the information that you send out. The last thing you want to do is send out a budget and have a bunch of errors in it, and then have people turn around and say, wait a minute, what happened? And then all of a sudden the board's looking and going, Well, I thought the property manager had this done. And the property manager says, Well, I was relying on the reserve study. And then the reserves person says, Well, you guys told me this was a reserve category. I didn't realize it wasn't, or something along those lines. So you want to lose it.
SPEAKER_00Accuracy counts. Correct.
SPEAKER_01And you can't imagine. There's no better way to lose your community than not be accurate, especially when you're sending something out in order to sort of tell your side of the story or show that what you're doing has a level of confidence. By the time you want to go around and start collecting, you know, uh revocations of recall ballots, be careful. That's not actually really within the function of the board of directors. That should be done by board of directors if they want to do it in their individual capacity.
SPEAKER_00There's an overarching issue here, John, and that is communication. So I have rarely, if ever, found that a board who communicated often is the subject of recall, even if they've got unpopular things on the agenda, including special assessments, deferred maintenance projects. If they're communicating often, I rarely find that those are the boards that are ever subject to recalls. And I routinely recommend what I call an end-of-year good and welfare report, which is particularly important in the big, in the large communities where you've got a lot of international owners, investor owners. They don't know who Bob is on the board. They they don't go to board meetings. They they own the property, but they're rarely there. Um the end-of-year good and welfare report actually lets your members know what you as a board have done, how much money you've collected through the collection process, what projects you undertook, what challenges you faced and surmounted. Wouldn't that be helpful?
Facial Validity: What Counts, What Doesn’t
SPEAKER_01Look, those are tremendously helpful. Special assessments. There's no better way if you need to do a special assessment to have a PowerPoint and make it available for people online or by Zoom to go through the PowerPoint, indicate what the problems are, bring your engineer in who did the reserve study or indicated that the railings all need to replace. Have them show the pictures on what the problems are. Give an overload of information because when people are looking at this, they get this is a problem, as opposed to we have a special assessment and we're not going to tell you why, or we're not going to go through. There's a lot of time that these things may not mean a lot in terms of getting it passed, but it means a tremendous amount in conveying the uh the information. And the other thing I want to talk about just for a moment is what happens when you get a uh, you know, when you get a recall petition. Generally, the board of directors is required within five days to hold a meeting. And either you're going to certify the petition or you're not. And as we discussed earlier, that either goes by certified mail or it goes by service of process. It doesn't go by dropping it off at somebody's doorstep and putting it there with the words important on it. The board gets it. Now, the board has a couple of options. As we talked about before, sometimes the board will say, look, you know, they don't want me. That's fine. Let me resign. If you don't call that meeting within five days, that recall petition takes effect and the new board comes in, and the old board now has 10 days to turn around and provide the documents that they have that they collected while they were in, uh you know, while they were in their officerships or their their directorships. Two, if the board goes through it and doesn't want to certify it, it is imperative at that meeting. If you're the lawyer for the board, you need to make sure this is done appropriately. You have to indicate why you are not certifying the recall. And that doesn't mean there's not enough ballots, or we didn't count eight ballots. If you're not counting eight ballots, you need to indicate what's wrong with each of those eight ballots. Number two, generally the division is looking at whether the ballot is facially valid.
SPEAKER_00Walk us through that. So let's say you're saying we got problems with eight ballots. Yeah. What are some of the problems with those eight ballots?
SPEAKER_01Number one, the person's not an owner. Okay. Number two, we have been voting by voting certificates, and this isn't who's on the voting certificate. Number three, these ballots all were pre-marked. So we're going to knock those out. Those become some of the reasons. What's not a reason?
SPEAKER_00Wait, I know another reason. What about this is I know Susan and this is not her signature. This this was forged.
SPEAKER_01These become very difficult to do. Normally, what I've seen, and you know, again, I have yet to litigate one where you really have massively forged signatures, but you will turn around and you will have, I know Susan, this is it. And let me show you. I've got the deed that they wound up signing or something they signed on a check that they paid their assessment because they're still writing checks. This signature is different. Therefore, I'm not going to adopt that. We tell, you know, generally the answer is it's facially valid at that point.
SPEAKER_00Also, people's signatures do change. I look back at my signature from 20 years ago, it's vastly different.
Timing Windows And Elections
SPEAKER_01But we want to be very careful on that. Number two, you need to sit down with the board, you know, preferably not exactly at the board meeting, but you need to talk, you know, without dealing with a poem of the board, you need to talk to certain board members and explain to them. If you challenge this, and you sort of referenced earlier, you're going to want to prevail on this. You don't want to do a challenge for the sake of having a challenge, and you don't look good if you knock these things out. We've had some, for instance, where we wound up having, you know, out of 150 unit, you know, association, they've turned around and they've delivered 80 ballots. It's enough. And we've looked at them and said, okay, we think these five are problematic. Three, you know, some of them because they were pre-checked, some of them on minor deficiencies or something along those lines. But the fact is, is is that if you don't certify the recall, the ballots are still good for a second recall if it's done within 120 days.
SPEAKER_00So they don't have to go out and get new signatures.
SPEAKER_01Can you have your wife sign? Or here's a new voting certificate. So you To be careful if you're advising the board, even though they can potentially fight and they can potentially prevail, do they want to do that?
SPEAKER_00But conversely, if the recall is not certified, John, there's also time for people in that intervening period to remove their signatures and say I've changed my mind, correct?
Developer Seats And Voting Interests
SPEAKER_01No, after those signatures are done, those signatures are valid unless you wind up doing a second recall. So after those are gone, so if you turn around and you serve the recall petition, the board says we're being recalled. They call up their eight friends, they're going, look, how could you do this? You know, we went to dinner two days ago and you didn't tell me you were recalling me. You know, I just got served with this recall petition. Can you please sign this and recall your recall ballot or or you know or remove your name? That doesn't work. Those are done at the time it's served. If those are valid at the time that it is served, you can't recall it afterwards. Now that doesn't mean if you wind up having to do another recall because the first one failed and you want to use those names again. They can recall them when you go back for the second recall because the first one wasn't certified, but you can't do it in that gap period.
SPEAKER_00Are electronic signatures acceptable in Florida?
SPEAKER_01It's interesting because the legislature just made, as you well know, a number of indicate you know, changes to sort of facilitate the ability to people vote electronically and things along those lines. There's recent cases, even in 19 uh 2023 with the DBPR, where they've said docusign signatures don't count. So you've got to be willing to get the legitimate signature back signature, generally will work or something else that is not just a docusign signature. So you want to be careful of what you're collecting along those lines. Then if you wind up going to the division, and these things generally go to the division or an HOA, I think you can go search, you know, in into court on it. Now the courts will review these things and make a determination. You want to be careful because occasionally there are prevailing party attorney's fees, and then there's a couple of different things that can happen. So if you wind up making a determination that you want to recall, you know, either the entire board or some of the board, the board has to make a call whether they're going to accept the recall petition or not within that five-day period. If they vote to accept it, and now all of a sudden that one board member that nobody likes is off, or you wound up removing three board members, nothing prevents the board member themselves to challenge the petition. Meaning, okay, this has been accepted now by the board, but I don't agree with the board position. I think that it isn't valid that single board member or one or more board members, notwithstanding the board vote, have the ability to challenge it. If it's not certified or not accepted by the association, then those who have filled out the petition, and usually there's one or two leaders on, if you look at the form, that'll indicate who's behind it, has the ability to turn around and and file a uh a petition on their own.
Don’t Tie Future Boards’ Hands
SPEAKER_00And the Well, let me go back to let me go back to the single, the lone board member who refuses to accept that he or she is being recalled. That individual is on their own if they want to, uh if they want to object to the recall certification. In other words, they're not able to reach out to association counsel and say, fight this for me. And they're not able to reach out to DNO coverage and say, hey, I'm I'm the subject of a recall, please help me out. Correct.
SPEAKER_01Well, in a DO coverage, they're not being sued. They're bringing the claim to go to go back.
SPEAKER_00The reason I asked my question is I actually had a director reach out to DNO and treat it as if they were being attacked legally. It did not.
Graceful Exits And Smart Pivots
SPEAKER_01No, and then but but keep in mind, if they prevail, they get their attorney's fees, and the association is going to pay them their attorney's fees. They could be liable for their attorney's, for the association's attorney's fees in that situation if the department deems the petition frivolous, of which they they they may, depending if there's a valid basis, and that may get into the individual arbitrator that's handling it. There's a couple of other things that you want to keep in mind. Number, you know, one of the things you want to look at is when am I dealing with the recall? There's sort of blackout, there's not blackout windows for when you do a recall, but there are blackout windows for the R for the DBPR and for this the courts to actually accept jurisdiction of a challenge. So generally the courts and the DBPR are not going to hear a petition on a recall if you're within 30 days of an upcoming election or you're 30 days after an election. So if you sort of do the math on that, you can really only do a recall within a period of eight months of the year, if in fact those are the seats that are that that are up. So you want to keep that in mind. Two, the recall is a lot more difficult to obtain than an ele than than the results of an election. So generally a condo election is going to go forward if 20% of the membership votes in the election. So you could win an election with 10.1% of the vote. You have 20% vote, you've got to get a majority of that 20%, which may be 10% plus one.
SPEAKER_00Well, that's an that's an interesting point because I I often wonder why there's not more energy towards the election process as opposed to the recall process. You know, the the the blackout windows that you just mentioned make sense. You're not going to mount a recall, you know, when there's an election right around the corner. Hopefully you've got the same people that you would have had as your replacement directors running for the board. The same thing with the 30-day period post-election. That's just not being satisfied with the results of the election. But there could be more energy put towards the election process. I mean, there was a reason that the legislature changed the rules for condominiums in Florida to only require 20% of eligible voters to cast an election ballot due to the apathy we see.
SPEAKER_01You've adequately turned the apathy aspect of it. You don't need a majority to win. And if you can get it, a recall on a 50%, you can probably get an election with substantially less, and it's substantially easier because you don't have to walk around. You don't have to verify anything. It's just handled in the election.
SPEAKER_00And there's also fewer hurt feelings. You know, I think people are up for a fair, most people are up for a fair election. They're they're up for a little competition. They may not be thrilled if they lose, but it's a I would imagine the process emotionally is much different than having people yank you out of office.
SPEAKER_01Correct. You know, it really is. By the time you've got the majority of the community wanting you not as a board of directors, you know, that's sending a message. And there's a lot of reasons why you can look at at why this happened. The other thing, keep in mind, and this is sort of always a statement of the obvious, you are not allowed to recall a developer's director.
SPEAKER_00I was going to ask you that question, John, if this could, if we could do this with developer-appointed directors.
Risky Smear Tactics And Legal Lines
SPEAKER_01It would be really easy. So only the developer recalls the developer director, but on more sophisticated entities, where you wind up having certain people voting for certain members of the board of directors, only the majority of those people can recall the director. So if you wind up where you have eight condos and each condo puts one person on the master board, only that condo can recall their person. So you want to look at it. Who is my voting interest? Who votes for me? You need a majority of the people that are voting for me to implement the recall on it. So you want to be careful along those lines. Everybody hates the person who's representing condo eight, but only condo eight votes for that person. You know, condos one through seven can't move with the majority of their members to remove the director from condo eight.
SPEAKER_00Well, I also think very small communities, John, you know, 50 units or less, or and this applies to HOAs as well. Um, you have to be very mindful of voting blocks. You said at the outset of this episode about, you know, getting into an argument with the wrong person. Well, if you have a 10-unit condo or a 10-unit HOA and somebody owns more four or five units, that's a voting, that's a very significant voting block. There's issues with that person maybe not paying their assessments as well. But I I I know that smaller communities you've got to be very mindful of allowing multiple unit ownership by the same person or entity because of that vote potential voting block.
SPEAKER_01But I'll also say this when we move off there, think about it. If you've got a 10-unit condo and and there's one entity or one person that owns four of them, you should have that person on your board of directors. They represent 40% of the community. You even if you're not going to agree with them on every vote, if you're trying to do this to make sure you get the best decision, you're consulting with that person because that arguably is the largest segment of your, you know, of your entire constituency, constituency of which you are representing. So you want to reach out to that person. They're not, you know, just because you wind up, and a lot of times we have this, you know, where I've got a corporate owner, we hate the corporate owner. I've always said, you may hate the corporate owner, but if the corporate owner owns 15% of the complex, you want to have somebody that's a liaison to that person if they don't have their own person on the board of directors. You want to make sure when you're running this thing that you're hearing what everybody says. That way you're not making decisions in the dock. You are listening to it. Nothing says you have to go with what that, you know, but with what the the corporate owner wants. But it does mean you should be listening to them because your fiduciary duty, you have as much of a duty to the person or the entity that owns 15 units as you do to everybody else, to the extent you you're trying to make the decision what's in everybody's best interest.
SPEAKER_00And it's good advice. Do you think people take it?
SPEAKER_01Some people take it, some people get it, some people don't. And if you've been doing this long enough, I know you've been doing this a fair amount of time, you see all of these different issues uh come up in different in different ways. Sometimes you sort of look and you're going, I'm not sure why this is happening. Other times you sort of look at this and you're going, okay, if this doesn't happen this month, I bet this is going to happen within the next two.
Final Takeaways For Boards And Owners
SPEAKER_00So you said we can't we cannot recall a developer-appointed director. What about the board, John, that's subject to a recall? It's it's lengthy. They and they know they're probably they're not terribly popular. They they probably suspect that they will be recalled. Is there any any handcuffs on that board's ability to enter into long-term contracts, start making a bunch of s significant decisions knowing they're gonna be recalled?
SPEAKER_01These have a slew of problems with them. And you know, you wind up and we've seen it, where you know, a board believes it's gonna get recalled, and one of the reasons they're gonna get recalled is because they've got an absolutely crappy manager who the board loves, but is performing, you know, 60% or 80% of the unit owners. And so the unit owners have had enough, so they start working to recall the board, but the board doesn't want the property manager to go, so they do a new employment agreement with the property manager to ensure that there's this massive termination provision. These things get inordinately complex on how those things are handled. You know, there's issues of you know whether they're, you know, you're you're you're breached your fiduciary duty, but in order to tag a board member for breach of fiduciary duty is inordinately difficult with any real liability. Is there apparent authority? And I don't think there's just necessarily a solid answer to something along uh you know, along those lines. There's certainly you can do certain things when the developer does it, but when you wind up dealing with a group of board members who potentially get knocked out, you need to be, you need to be very, you know, very careful.
SPEAKER_00That gets back to that scorched earth philosophy, John, of, you know, if again you're a fiduciary, you have to put the association's best interest in front of your own, entering into long-term contracts to protect the vendors or the professionals you want to protect, not not the best idea. Also, not giving up the documents, the association books and records, or online banking access. I know in a lot of times with recalls, the biggest issue the new board coming in has is gaining access to the books and records and specifically to the bank accounts.
SPEAKER_01Yeah, I'll say a couple of things. First thing is it's it's absolutely amazing that there's not an understanding occasionally by the banks that when a new board takes over, that information is available. Most banks have certain resolutions that need to be signed in order to change who the account is. So our advice is to go to the bank, preferably the branch in where the account is located, ask them for the resolution. Now, if you get a resolution from the bank that needs to be signed to change the signatories or to get access to it, that doesn't mean that you, as the board, sit at the bank that day, sign it, and hand it back. That means you actually have a notice board meeting, you actually read the resolution or what they want signed, you vote on it in front of the membership, and then you bring it back to the bank. No, you know, and the bank then really is obligated at that point to turn over those records. And if not, there's a whole slew of problems with the bank basis. And a lot of times it's just a question of getting it up high enough within the bank that somebody gets it and goes, well, wait a minute, that person's no longer a director, they can't control how the money is going to be spent. And we see some you know potential liability on that. Number two, and it comes up in a recall situation, but it comes up all the time. We have standard conversations where you wind up having a very strong board member or a couple of strong board members, and they've decided now that they don't trust any future board ever. So they're gonna lock in every board for the rest of eternity on how they're gonna do things. And we always sort of tell those boards that, you know, look, this is what you want to do. It's within your ability to do it, you can do that. But we already have said best practices is not to tie the hands of future boards. Let future boards make the decisions that future boards want to make that they believe is in the best interest. And your way to correct that generally happens to be either through an election or a recall process if they're not doing what we're supposed to do. Good boards don't spend their time trying to figure out how a board two years from now is going to handle something.
SPEAKER_00I could not agree more. I mean, that that that level of control is again not an indicator that a director or a board as a whole is um acting as a fiduciary. So I agree. We're coming up on the time, John. So I've got two last questions for you. The first one is your client community is faced with a total recall. Was that a movie? I think there was a movie called Total Recall, wasn't there?
SPEAKER_02Yes, yes.
SPEAKER_00Towards it they were right. Okay. Total recall, different premise. Um, what are the first three things you tell your client to do? They're fate. They just got served.
SPEAKER_01If they've just been served, now your answer is let's look at the petition and determine if it's facially valid or or the balance. That's what you're doing. It's too late to do anything else. Your job in your fiduciary capacity is to look at that. It's not to try to figure out how to preserve your tenure on the board. It's not an idea to have this be a bigger deal. The answer is let's look at the ballot. If they're facially valid, then generally you should accept it and you should probably our recommendation is not resign, but hold the meeting, thank the membership, indicate that you've heard them, indicate you're gonna step off, indicate that if you need anything, we're happy to be there and we're happy to assist, and see how that new group does. Because a lot of times it may come full circle where they're going, well, wait a minute, this was the good group. Don't burn the bridge, don't try to legally fight something you're not gonna win with association funds. And keep in mind that when these things go to the DVPR or the circuit court, generally the answer, you know, you know, the moving party generally has the burden of of proof. But generally, also, if it's a facially valid recall, people aren't swapping out their judgment for the judgment of those who voted to do the recall.
SPEAKER_00So if you're So if it's valid, accept your fate, move on and and depart gracefully. Assuming it hasn't been served yet. Your your your board president picks up the phone, calls you and says, John, we know they're trying to recall us. What's your top advice at that point?
SPEAKER_01Number one, is there any chance to succeed? Or is this just a nutcase that is walking around by themselves and they've got two other people out of 120 units that they're going to try to get to sign it? But if it's valid, or if you think there's some fraction, that's your time to better message what you're doing and why you're doing it. You know, don't, again, don't go head-to-head necessarily with the person that's trying to recall you unless you think you you you you need to, but get your information out. If you are doing something because you truly believe it's in the best interest of the community, you need to explain why it's in the best interest of the community. Number two, if you're doing something because you believe it's in the best interest of the community, and you slowly start to realize, well, maybe the community doesn't think this is in their best interest, and maybe it's not in their best interest. It's just a judgment call. You know, you're there in a representative capacity. If the majority of your unit owners don't want you to do something, you may think it's in the best interest, maybe you shouldn't do it. Maybe you should say, look, we're not going to put up 18 speed bumps to get in here, which is the forming the basis of the recall. Or maybe we need to, instead of doing a special assessment, maybe we need to look at a loan or different options, meaning you should have your finger on the pulse because if the majority of people you think are going to have attraction on a recall, you need to consider do I need to tap right or tap left, such as sending out an email saying, look, I know we were proposing a special assessment in the following amount. We've heard from a number of unit owners that this has concern or they don't want to do this. Please be advised that we're proceeding immediately on the following two items at the following cost, because these are life safety issues. On the remainder, we're slowing it down. We're looking at the engineers, we're talking about other options we have. Maybe we don't need to do everything, and we're looking at a four or five-year plan and we're looking at financing or different ways that we can handle it.
SPEAKER_00You know, I had that situation last year. I had a board that was passing a pretty hefty special assessment, John. And the two installments were due in guess what? November and December. The two heaviest months when it comes to holidays, travel, what have you. And and they did listen. You know, the the the demand was, hey, don't do this to us during during holiday months. They went back and they said, we're going to spread this out over six months. And, you know, recall went away, special assessment was passed, more breathing room was given, everybody was relatively happy.
SPEAKER_01And as you said, Di, you're listening to your residents because that's who's elected you. And I always, you know, I I think as you always do, you are not there to do just what you want to do. You are there in a representative capacity. Your decision should be made, not on what you want to do, but what do the residents want to do if they have the knowledge that I have? And if they don't care, but it's a really good point.
SPEAKER_00You are there as their mouth. You're the representative. This is I'm going to circle back. Democracy at its finest. This is uh the little subset, the little democratic subset we work in. Um, I want to throw one wrinkle at you, and then last question. The wrinkle is this your client, the board is knows that there is a recall underway, but the little group, the two people mounting the recall are two former board members that your client, the current board, believes wants to get back on the board to continue their mischief making in terms of contractual issues with vendors and everything else. What do you do then? Because that I've had that happen.
SPEAKER_01There's not necessarily a red line that you can cross until you know that you've crossed it. But for the most part, the answer is you should be talking to your board, you should talk to them of whether they need to get something out, whether that should come out from the board itself, whether that should come out from individual board members. Keep in mind, and one of the things you have to tell them is if you turn around and you use counsel to assist you on this aspect, which may be, depending on what it is, legitimate. It may be illegitimate. But if the answer is we need help with a message to explain why the special assessment that we are putting through is a valid assessment, that is something that a board can seek use of counsel from, and that's something that you can assist that that board in. You want to be careful putting together the email that talks about the fact that the prior president had a number of kickbacks that you just can't seem to be able to establish, but you know they're there because nobody Would ever hire a contractor at this price. And there you want to be careful. And you also want to have a discussion with the board in that situation, in which be careful how you use your legal services, because there's nothing worse than a group of people trying to recall the board, then asking for the invoice from council, seeing the council has had six to eight hours of consultation with different board members on the recall, then having that invoice published after you got it on a records request, indicating, did you know your board is paying, you know, counsel with your money to respond to the emails that I am sending out? And that has traction a lot of times. And sometimes you need to just sort of tell the board, these are certain things. If you want to go down this direction, you may want to do this on your own, or you may want to consider other, you know, other counsel. And different counsel and different lawyers will vary on where that line is. There can be certain red lines you don't want to cross, but where that gray is, it's a very large area of gray. And you inevitably have to sort of navigate that gray area without getting into uh a specific red area, with the understanding that depending on what you're doing can create more problems for the board when the invoices get published than before than absolutely.
SPEAKER_00And my experience has been, and I I venture to say it's been your experience as well, John, that focusing on what's right about this board and as as opposed to what's wrong about somebody else is the better way to go.
SPEAKER_01You need to you need to do that. They want to turn around and they want to attack the other board member, you know, the prior president. They don't need arguably counsel to do that. And and you want to be be careful, and you certainly don't want to necessarily sign your name on the fact that you're convinced the guy wound up or the woman wound up receiving, you know, kickbacks when that, you know, you can't you can't establish it and you you can't prove it, even though everybody thinks that took the place, even though by the time you dig down, half the time that's just not true. Um you you you want to be very careful treading into that. I've always said also on this defamation area, very, very difficult for anybody in a community association world to establish real defamation claims that are able to get over qualified privilege if the criticism, the communications relate to actions that they have taken or not taken with respect to the business of the association.
SPEAKER_00Yeah, and the legislature just also in in in the recent years has um has reinforced that position with the anti-slap suits, it's getting harder and harder. I know a lot of our boards want us to send out a cease and desist, and but whenever you're trying to clamp down on on criticism of the board, that's gonna be very difficult.
SPEAKER_01So, John, but you don't have the right to criticize the board, and if you want to be on a board at some level and you just need to accept the fact that people aren't gonna agree with you and they're gonna criticize you. And if that's gonna be that insurmountable a problem for you, then you ought to consider whether you ought to be on a board of directors.
SPEAKER_00I agree. I mean they have the right to criticize you, they don't have the right to defame you, they don't have the right to accuse you of committing crimes you haven't committed. That's where you reach out to counsel and they can walk you through the defamation per se protocols. So, John, any final thoughts or musings on the recall process?
SPEAKER_01No, I I would always say this with recall. Recall on two aspects. One, recall from the board aspect. The board, if it's a functioning board, should have its heads up on what the problems are in the community and take those actions to prevent a recall from either starting or one that really gains traction enough that it becomes a real threat. If you're getting recalled and you don't know it, or you don't have your finger on the pulse, that's sort of a failure as a board member to really have their eyes open and knowing what's happening in the community. And as for the unit owners, if there are bad board members or they're not following, not what you want, but what the majority of the community wants, this is one tool in many that you have that's an effective tool, but it's a heavy, heavy lift. And if you're gonna go down it, you need to sort of be willing to do the lift. And you may want to get out there and see if this is just you and your three neighbors who are really upset about this, or is this an overriding issue within the community before you undertake it?
SPEAKER_00Don, it's great advice. Thanks so much for joining us today.
SPEAKER_01No, thank you for having me, Donna, and thank you for everything you do.
Outro And How To Connect
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