QUESTION: Our board is proposing election rules that prohibit more than one recall per year. What is your opinion?
ANSWER: It makes sense. There are dysfunctional elements in some associations that launch recall after recall to torment boards. They hover over each ballot count with another recall petition in hand in case the board survives the recall. Abusive petitioners will serve three or four recalls in a row to wear down directors and pressure them to quit.
Disruptive. The petitioners do not care that they disrupt operations and burden the membership with needless expenses. It is not unusual for them to become abusive with vendors and staff, make repeated demands for records inspections, and threaten lawsuits in an effort to coerce people into giving them what they want.
Reasonable Restrictions. Such behavior need not be tolerated. Associations can adopt election rules to deal with serial recalls. Because neither the Davis-Stirling Act nor the Corporations Code address excessive recalls, we can turn to California's Elections Code for guidance. California puts the following restrictions on its recall elections:
Recalls may not be started against an officer of a city, county, special district, school district, community college district, or county board of education if: (a) the officer has not held office during the current term for more than 90 days; (b) a recall election has been determined in the officer's favor within the last six months; (c) the officer's term ends within six months or less. (Elections Code § 11007.)
Accordingly, it would be reasonable for associations to adopt similar restrictions.
Contrary Opinion. Some believe the Corporations Code provides member rights to remove directors independent of any contrary provisions in the governing documents (i.e., Section 7222 does not open with "unless the bylaws otherwise provide" as do other sections of the Code intended to be subject to the bylaws). Also 7511(c) effectively limits recall meetings to not more than four per year by authorizing the board to schedule meetings 90 days out.
Recommendation: Because the law is unclear, associations should seek legal counsel on amend their election rules and/or bylaws to add a provision addressing serial recall elections. Reduced quorums for membership meetings and adjournments can also be a problem for associations and should also be addressed.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.