REMOVAL BY THE BOARD. Where an association's bylaws provide for it or conditions are met as described in the Corporations Code, a director's seat can be declared vacant by the board. See "Director Removal by the Board."
REMOVAL BY THE MEMBERSHIP. The membership always has the right to remove directors from the board. The vote to remove directors must be done by secret ballot at a duly noticed special meeting of the membership.
1. No Cumulative Voting. If an association has fewer than 50 members, removal is approved by the affirmative vote of a majority of all members entitled to vote. (Corp. Code § 7222(a).) If the association has 50 or more members, removal is approved by the affirmative vote of a majority of the votes represented and voting at a duly held meeting at which a quorum is present, with the affirmative votes also constituting a majority of the required quorum. (Corp. Code § 7222(a).) The Inspector of Elections tallies the votes and announces the results.
2. Cumulative Voting. If an association's governing documents allow for cumulative voting, the Davis-Stirling Act makes it mandatory when electing directors. (Civ. Code § 5115(e).) Cumulative voting makes it easier for a minority of owners to elect a director. It also complicates the removal of a director.
a. Removing the Entire Board. Cumulative voting is not used when voting to remove the entire board. The number needed for removal is described above in "No Cumulative Voting."
b. Removing Less than the Entire Board. Removing less than the entire board is more complicated because a minority of voters can block the recall of a director even if a majority of voters approve the removal. The Corporations Code provides that no director may be removed when the votes cast against removal would be sufficient to elect the director if voted cumulatively at an election where all memberships entitled to vote were voted. (Corp. Code § 7222(b).) This provision is confusing, and authorities disagree on how it works. It calls for a calculation that involves cumulative voting but using it results in a supermajority to block recall rather than a minority.
The problem arises because non-cumulative voting is used when approving the recall (a simple "Yes" or "No" vote to approve the removal of a director), but cumulative voting is referred to in the statute for blocking the recall. The two don't mix.
EXAMPLE #1. In an association with 5-member board and 100 members where every member casts a ballot, 51 "Yes" votes are sufficient to remove a director. Per the Corporations Code, since a minority of members can cumulate their votes to elect a director, a minority of "No" votes is sufficient to block the removal a director. However, if the cumulative voting formula is used for electing directors, it produces a supermajority needed to block a recall as follows.
|| M x D
(Truncate if the result is fractional, i.e., do not
round up or down--simply eliminate the fraction.)
||V = VOTES (number of votes needed to block removal)
D = DIRECTORS (total number of directors authorized in the bylaws)
M = MEMBERS (total number of members entitled to vote)
|D + 1
|| 100 x 5
||+ 1 = 84.3
||When truncated, the number of votes needed to block removal is 84.
|5 + 1
Clearly, this is not the result intended by the Corporations Code since the number needed to block removal can never be achieved. If 51 members vote to remove a director, only 49 votes remain, which can never reach the 84 calculated by the formula. The statute is poorly drafted and fails to clearly spell out how to achieve its goal of preserving minority representation. A posible reconsiliation is to weight the recall Yes/No votes by multiplying them by 5 so that cumulative voting is on both sides of the equation. That way, they cancel each other out and we can simplify the formula as demonstrated in Example #2.
EXAMPLE #2. If cumulative voting is used in both steps of the recall, they cancel each other out and the following formula produces the correct result:
||+ 1 = 17.7 truncated = 17
||(This equals the number of votes need to elect a director, which is also the number need to block the removal of a director.)
|5 + 1
Staggered Terms. Staggered terms have no effect on the formula. The number of votes needed to block the recall of a director who was elected when there were two open seats is the same as when 5 directors are elected:
|(2 open seats when elected)
||+ 1 = 17.7 truncated = 17
||(The number needed to block removal.)
|5 + 1
Those Not Voting. Some argue that members who do not vote count as "no" votes. With this interpretation, recalling an individual director is virtually impossible due to voter apathy in most associations. The argument for counting non-votes as no votes relies on their interpretation of language in the Corporations Code that "no director may be removed...when the votes cast against removal, or not consenting in writing to the removal, would be sufficient to elect the director if voted cumulatively..." (Corp. Code § 7222(b).) We disagree with this interpretation. There are two arguments against the practice.
1. Written Consent. First, there are two methods for approval. One method is voting by ballot; the other is approval by written consent. In "written consent," one or more documents are circulated to the membership, which allows members to sign consenting to the removal of a director or not to sign if they oppose removal. If a sufficient number of members do not consent to removal (i.e., oppose removal), the removal fails. Approval by written consent of the membership was eliminated when California changed voting procedures for homeowners associations to secret ballots for the removal of directors.
2. Ballots Only. Since written consent no longer applies to the removal of HOA directors, only actual ballots against removal may be counted: "no director may be removed...when the votes cast against removal...would be sufficient to elect the director if voted cumulatively..." (Corp. Code § 7222(b).)
Permanent Removal. The Corporations Code does not provide for the permanent removal of directors. So long as the person meets the qualifications of a director and there are no term limits, he/she can be elected to the board even if recalled by the membership. If an association has cumulative voting, almost anyone can be elected, no matter how dysfunctional they might be. To avoid this problem, associations should amend their bylaws to eliminate cumulative voting.
Recalled Directors & Replacements. Once members remove a director, his/her replacement must be elected by the membership. (Corp. Code § 7224(a).) Unless the articles or bylaws provide otherwise, if the entire board is recalled, directors remain in place until a new board is elected since a corporation cannot function without a board. As long as they meet the qualifications of a director, persons recalled from the board may nominate themselves in advance of the recall and run for open seats in the event the recall is successful. Associations can amend their bylaws to require recalled directors to remain off the board for a specified period of time. Such a restriction, however, could have unintended consequences:
1. Apathy. Sometimes apathy and misinformation can result in good directors being recalled by a small number of owners with personal agendas. Once the recall occurs, the membership may discover that the new directors are worse than the recalled directors. If bylaws imposed restrictions on recalled directors, it would prevent the membership from putting the good directors back on the board.
2. Cumulative Voting. Another problem with the prohibition is that HOAs with cumulative voting sometimes need to recall an entire board to remove one bad director. Restricting recalled directors would make good directors ineligible along with the actual target of the recall.
Sending Ballots. There are a number of factors for boards to consider when sending ballots to recall and elect directors.
Recommendation: Associations should seek legal counsel when faced with a petition to recall one or more directors. Because there is disagreement in the legal community on how cumulative voting affects recall elections, boards should adopt recall procedures. In addition, they should amend their governing documents to (i) eliminate cumulative voting, (ii) limit abusive recall petitions, (iii) eliminate proxies, and (iv) drop quorum requirements for the election of directors.
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