QUESTION: A petition to recall the board was presented to our management company. The board then met in closed session with an attorney "to advise the board on possible scenarios and solutions." Who pays the attorney?
ANSWER: Board members are volunteers and rarely know how to properly handle a recall petition/election. As a result, it is common for them to call HOA legal counsel to find out what to do.
Common Questions. Following is a sampling of questions I get when boards are served with a petition:
- If a husband and wife both sign the petition does it count as one signature or two?
- Can/should the board verify the signatures? If so, how?
- Is the petition confidential or should it be published?
- How much time do we have to call a recall meeting?
- How are nominations handled?
- Do recalled directors have the right to run for the board?
- And so on...
Legal Fees. Since legal counsel is important in such matters, it is proper for the association to pay for the advice. The last thing you want is a botched recall and a lawsuit.
Political Issue. If, however, the board is meeting with the association's attorney for strategies on how to defeat the recall, that's a political question and inappropriate for legal counsel to be involved in. Boards have the right to fight a recall but not with association resources.
Recommendation: The unavoidable side-effects of a recall are higher expenses involving management, inspectors of election, and legal. One way to reduce the cost is to revise election rules to incorporate procedures for handling recalls. Having a written policy eliminates some (but not all) of the cost, emotion, and suspicion surrounding recall elections.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.
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