Few actions within a community association create more angst, anxiety and anger than the receipt of a petition to recall (or remove) one or more members of the board of directors. Recalls can be highly emotional, confrontational and divisive, and their ramifications can last for years. While recalls are sometimes necessary, they can also be based on little more than a disagreement with a single decision of the board. Regardless, the board’s response to the receipt of a recall petition must be diligent and timely.

Recall elections are governed by Corporations Code section 7222 and an association’s governing documents. Recall elections may involve the removal of one, some, or all of the directors. The recall process generally commences when the board receives a petition signed by at least 5% of the association’s members calling for a special meeting for the recall of one or more directors. While most recalls are generally initiated by the concerned members, recall petitions may also be initiated by one or more board members, or as otherwise provided in an association’s governing documents.

Within 20 days of the board’s receipt of a petition signed by the required number of members requesting a special meeting, the board must set a date for, and notice the members of, the special meeting to hold the recall election. If the community is a common interest development, the special meeting must be held between 35 and 150 days of the board’s receipt of the petition. This “20-day notice” should state: (i) the board received a petition requesting a recall vote so a vote will be held (the purpose of the meeting); (ii) the date, time and location of the recall meeting; (iii) the quorum required for the recall meeting; (iv) an election will be held if the recall is successful and (v) a solicitation of candidates to run for election if the recall is successful. If the board does not set its own date and send out notice of the recall meeting within 20 days of receiving the petition, the members calling the meeting may independently set a date and send out the notice.

Upon receipt of a petition, the board should also promptly appoint a neutral inspector or inspectors of election to make important decisions regarding the recall process. These decisions include, but are not limited to, determining the number of memberships entitled to vote, receiving the ballots, determining the validity of any proxies and ballots received, making decisions on voting and challenges thereto, performing registration, validating member information, tabulating the votes, and certifying the voting results. (Civil Code section 5110.) The inspectors of election essentially become the primary decision-making entity on most issues governing the recall process (the Association may prepare the notice(s), ballot(s), voting instructions, etc.).

Both the recall and election for replacement directors must be done by secret ballot. Therefore, an association must send secret ballots, voting instructions and two return envelopes to the members at least 30 days before the date of the recall meeting. If the election for replacement directors is held at the same time as the recall vote, the members may vote on two issues: (i) the recall of directors, and (ii) the replacement of directors if the recall is successful. Although the election of replacement directors could be conducted at a later meeting (depending on the language of the petition), most associations hold the election at the same meeting. When the election for replacement directors is held at the recall meeting, the inspectors of election tabulate the votes on the replacement of directors immediately following the tabulation of the results of the recall, if the recall is successful.

Just as with regular meetings, an association must obtain a quorum at a recall meeting before it may conduct any business. If there is no quorum, the meeting may be adjourned in accordance with the association’s governing documents. Sometimes, an association’s governing documents provide for a reduced quorum at reconvened meetings. Does this reduced quorum requirement apply to reconvened recall meetings? Depending on how the meeting was adjourned, yes it does which in an association with 50 or more separate interests might make the number of recall votes much less than at the original meeting.

Assuming there is quorum at the recall meeting, the only business that may be transacted at the recall meeting is the business specified in the notice of the meeting. For example, if the notice of the special meeting calls for a recall of directors only, the association cannot also conduct the election of replacement directors at the same meeting. It is therefore important to ensure the notice of the special meeting includes all of the items intended for action at the meeting, including the election of replacement directors if the recall is successful. It is also important to include candidates for election on the ballot if an election will held at the meeting if the recall is successful. It is import to note that directors subject to the recall vote may choose to be candidates for election if the recall is successful unless the governing documents prevent this.

Where an association’s governing documents provide for cumulative voting, unless the entire board is being removed there is a complicated formula which must be used to determine whether an individual director is removed. (Corporations Code section 7222). This formula requires a substantially higher vote of the members to recall a single director, thus making it very difficult to successfully recall one or more, but less than all of the directors. If the recall is successful, and one or more directors are removed, the remainder of the recall meeting is dedicated to the election of new directors, if the notice so provided. Note, the ballot for electing replacement directors can be quite complicated when the recall requests removing one, two, three or even four directors but not all of the directors.

When the recall is for the entire Board, whether or not the association’s governing documents provide for cumulative voting, Corporations Code section 7222(a) provides that the required vote for removal of directors is the affirmative vote of a majority of all members if the association has fewer than 50 members, and the affirmative vote of a majority of a quorum of the members if the association has 50 or more members.

Recalls are complicated and stressful on an association’s directors and members. A recall election should only be used when all other avenues to address disputes between boards and members have failed, but of course, if members are determined to hold a recall election such elections cannot be avoided. If the board receives a petition signed by the required number of members, it must call for the special meeting or allow the petitioners to do so. Mistakes in recall elections can result in court challenges and are expensive to defend. Upon receiving a petition for recall from the members, the association manager should immediately inform the board of the legal significance of the petition, deadlines related to receipt of the petition, and seriousness of the recall process. For these reasons, and more, an association should contact its legal counsel upon receipt of the petition for advice on conducting the recall election.

The above general information is for educational purposes only. If the Board needs further guidance or has specific questions on this issue, please contact your legal counsel.