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RECALL OF BOARD OF DIRECTORS – ONCE A WELL-WORKING
TOOL!
By
Jan Bergemann
Published
June 13, 2014
When
the members of the HOA Task Force voted in 2004 to add the
provision of Recall of Board of Directors by written petition to
FS 720, it was working well for condos since many years.
The
average time for a final ruling from the Division arbitrators
was about 2 months from the initial filing of the recall
arbitration.
The
idea was very simple: If the Owners Voting for Recall had 50% +
1 valid petitions the recall was certified – period!
It all worked well – with very few exemptions -- until former
Chief Arbitrator Karl Scheuerman was unceremoniously fired and
James Earl took over as the new chief of the arbitration
section.
James
Earl was obviously under the impression that he needed to create
new rules and came up with interpretations that not only made
very little sense but weren’t even based on the actual wording
of the statutes. He also changed rules in the middle of the
game, ruling that a recall arbitration filed by minority members
of the board is in reality not a recall arbitration – no legal
fees to prevailing party – but an election arbitration where
the prevailing party gets reimbursed for legal fees. That
bankrupted quite a few recalled board members who filed for
recall arbitration relying on the decision in the PLANTER'S
WALK HOMEOWNERS' ASSOCIATION, INC. case.
In
my opinion only a pretty screwed up mind could “invent” such
an interpretation. Recalling a minority of the board of
directors surely has nothing to do with an election.
Within
a short period of time the once well-working recall process fell
apart and instead of an average of 2 (two) months in now takes
an average of 5 (five) months to get a ruling in a recall
arbitration case. And some of these rulings are pretty
ridiculous. In former times it was relatively easy to predict
the outcome of a recall arbitration case. Now it’s a crap
shoot – you will never know what weird interpretation the
arbitrator will come up with. Sometimes I have the feeling that
the arbitrators have a competition going among each other
competing for the weirdest interpretation of the recall
provisions.
We
see more and more recall arbitrations dragged out in order to
make a “good” recall moot. Even the time-span created in one
of the Moraitis bills (FS 720.303(10)
(l) The division may not
accept for filing a recall petition, whether filed pursuant to
paragraph (b), paragraph (c), paragraph (g), or paragraph (k)
and regardless of whether the recall was certified, when there
are 60 or fewer days until the scheduled
reelection of the board member sought to be recalled or when 60
or fewer days have not elapsed since the election of the board
member sought to be recalled) is just ridiculous. Even if
the recall arbitration was filed 60 days before the next
election, the arbitrators will drag it out in order to avoid
making a ruling.
You
really want to have a serious chance to recall members of your
board? Wait for the next election, and if you can’t get them
out through the election process (often too much cheating and
ridiculous rules preventing the majority from winning elections)
start collecting recall petitions (on the DBPR provided form)
shortly after the election results were announced. Serve the
board on DAY 61 after the election. Wait for the result of the
recall board meeting and see what petitions the board is
challenging if they don’t certify the recall. Depending on
these challenges you might consider adding – or changing –
some petitions in order to make sure you win the upcoming
arbitration. Then serve the board a second time – making sure
that you have enough valid petitions before the recall
arbitration starts. That avoids surprises through weird rulings
of the arbitrators.
Honestly,
the folks in charge in
Tallahassee
should realize that these arbitrators are making a mockery out
of the once well-working recall process – and should quickly
replace them with some competent arbitrators.
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Jan Bergemann is president of Cyber Citizens For Justice,
Florida
's largest state-wide property owners' advocacy group.
CCFJ works on legislation to help owners living in
community
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associations. He moved to
Florida
in 1995 - hoping to retire. He moved into a HOA, where the
developer cheated the homeowners and used the association dues
for his own purposes. End of retirement!
CCFJ was born in the year 2000, when some owners met in
Tallahassee
- finding out that power is only in numbers. Bergemann was a
member of Governor Jeb Bush's HOA Task force in 2003/2004.
The organization has two websites to inform interested
Florida
homeowners and condo owners:
News Website: http://www.ccfj.net/.
Educational Website: http://www.ccfjfoundation.net/.
We think that only owners can really represent owners, since all
service providers surely have a different interest! We are
trying to create owner-friendly laws, but the best laws are
useless without enforcement. And enforcement is totally lacking
in
Florida
!
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