We successfully recalled our HOA board, yet the next day after the vote the recalled directors held a special meeting and enacted lots of business. We believe that everything the board enacted after it was recalled can be reversed with a blanket resolution by the new board.
What do you think?
P.S., Cathedral City
Does the announcement of the election results at the annual meeting immediately remove the existing board members from office or is the organizational meeting or something else required to formalize the transfer of authority?
Dear P.S. and B.H.,
Once a quorum has been reached and the votes counted, there is a new board. A recall vote is immediately effective. Corporations Code 7220(b) states that a director serves until their term is expired and a new director is elected to take their place. Unless the regular election was early, after the election the old board no longer has authority on behalf of the corporation. If a former board purported to make decisions when a new board is in place, the former board’s decisions could be rejected by the current board.
Best to your associations,
Our HOA recently had a total recall and election. Our board has staggered terms. The new president handed out the longer terms based on number of votes received. Our bylaws specify for the initial organizational election the drawing of lots to determine the longer terms. Should the president have followed the bylaws, as the situation is identical?
J.T., San Jacinto
The normal practice for an election such as yours where five vacancies exist and board terms are already staggered would be to announce to the membership that the top vote recipients would receive the longer terms. This would a board action, or perhaps the inspector of elections, but not the president.
Dear Mr. Richardson,
In our board election, the ballot count was not announced because the board said no. If a board member resigns after a new board is elected how is a replacement board member determined?
R.S., El Cajon
Under Civil Code 5120 votes must be counted in the open. 5120(b) requires that the tabulated election results be announced no later than 15 days after the votes are counted. Corporations Code 7224 provides that vacancies are to be filled by a quorum of the board. Such an action occurs in an open board meeting.
Can the 3-year proxy be used to establish the required quorum for a vote on a bylaws amendment? In the past, we have relied on the 3-year proxy to establish the required quorum for election of board members. Can it also be used to establish the required quorum for the bylaws amendment vote?
Yes, if the proxy is a general proxy (and not limited to only board elections) or a proxy solely to establish quorum, it can be used for quorum on the bylaws amendment. Landlord owners who do not wish to take the time to vote by written ballot can help by sending a quorum-only proxy to the association annually.
Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to Kelly@rodllp.com. Past columns at www.HOAHomefront.com. All rights reserved®.