Q: I am a director on the board of our HOA and we are questioning whether or not our board members can have a workshop to brainstorm and discuss the budget prior to presenting the budget to our membership. The board would not be looking to vote on and adopt the annual meeting at this workshop. What are the rules on this topic? (B.R., via e-mail)
A: You can have the meeting, but notice must be posted, and owners must be permitted to attend and speak. A “board meeting” is defined as any gathering of a quorum of the board to “conduct” association business. A gathering can occur physically, remotely (video or telephone conference), or a combination thereof. “Conducting” business is not limited to meetings where votes are taken.
In general, any gathering of a quorum of the board where association business is discussed or otherwise furthered is a “meeting.” Owners are entitled to attend board meetings and speak to designated agenda items.
There are two exceptions to this general rule. First, meetings with legal counsel to obtain legal advice regarding pending or proposed litigation may be closed. Likewise, meetings to discuss “personnel” matters may be closed.
A gathering where a quorum of directors is not present is not a “board meeting.” If the budget “workshop” would involve less than a quorum of the directors, it would not have to be held open to the owners as it would not constitute a “board meeting.”
Q: My condominium association has been looking into recalling a board member. We understand that the statute allows for recall but had questions on how to go about it and how the members vote to recall a board member. What is the required process? (M.G., via e-mail)
A: Chapter 718, Florida Statutes, the Florida Condominium Act, does provide for a process to recall board members with or without cause. There are two ways that a board member can be recalled. The membership can recall a board member at a special membership meeting for the purpose of recall, or the membership may recall a board member through written agreement.
Pursuant to Section 718.112(2)(l) of the Act, 10% of the membership can call for a membership meeting to hold a recall vote. At that the special membership meeting, if a majority of the total voting interests in the association vote to recall the board member, the board member is recalled and the board must hold a meeting within 5 business days and if the recall is facially valid, the board member is recalled at the adjournment of the board meeting.
Alternatively, members may vote for recall of a board member through written agreement. If a majority of the total voting interest in the association sign a written agreement for recall, the board member would be subject to recall. Once the members have obtained sufficient number of signed written recall agreements, the members must serve the recall agreements on the association. Once the association is served with the recall agreements, the board must hold a board meeting within 5 business days and if the recall is facially valid the board member subject to the recall is recalled upon the adjournment of the board meeting. There is very limited basis for a board of directors to not certify a recall that has sufficient participation by the members.
The Homeowners’ Association Act, Chapter 720, Florida Statutes, has similar procedures regarding the recall of board members.
The Division of Florida Condominiums, Timeshares, and Mobile Homes provides a Sample Recall Agreement/Ballot online that can be used in condominium recalls. The form may be found at http://www.myfloridalicense.com/dbpr/lsc/ARB/SampleWrittenRecallAgreementBallot7Lines2012.pdf.
Joseph E. Adams is a Board Certified Specialist in Condominium and Planned Development Law, and an Office Managing Shareholder with Becker & Poliakoff. Please send your community association legal questions to jadams@beckerlawyers.com. Past editions of the Q&A may be viewed at floridacondohoalawblog.com.