elected unwanted Director?
No problem, if you have the right players on board!
An investigative Article by Jan Bergemann
|Annual Membership meeting with elections,
new board members filling vacancies -- all common business in Homeowners'
Associations. You think?
Not so in Hunter's Run HOA in Lakeland , FL. On the morning of December 17, 2002 some board members woke up with some sort of a hangover. "During last nights election a homeowner received the majority of votes and will be sitting at the same table with us discussing association business, the same guy who had demanded to see association records and could only be prevented from doing so with the help of our attorney?"
That vision definitely got them thinking, but with the help of an attorney to provide the necessary legal assistance, a vindictive former board member and his "outraged" friends and some creative ideas they could eliminate "the problem". Interestingly, most of them did not attend or participate in the election of the new board members, yet they were upset with the result. So, they started a petition (see cover page ) -- despite the fact that there is no mention of a petition for recalling a director in the bylaws or the Florida Statutes 720.
Please note the difference of fact between
Vote and Petition (quote Merriam-Webster) :
The discussion about the method of recalling a director is ongoing in other Florida Homeowners' Associations as well. One case has just been decided in the Appeals Court in favor of FS 720.
It was definitely faster and easier to collect signatures on a piece of paper than trying to gather the voting majority of the association for a Special Meeting.
The petition was started by the former president of this association, S. Ray Hudman, who resigned from his post in 2001, because he considered it harassment when paying members of the association were asking questions he didn't want to answer.
So relying on the legal advice of attorney Steven Mezer from the Tampa law firm of Bush, Ross, Gardner, Warren & Rudy P.A., it was decided that a petition and a board meeting were the easiest ways to get rid off this unwanted intruder. Imagine, he might ask for official documents nobody should really see or that do not exist as required by Florida Statute? (The fact is that any official documents may be viewed BY ANY HOA MEMBER according to Florida Statutes.)
Mezer is the same attorney, who was involved in the foreclosures in the Lake St. George HOA in Tampa and was prominently featured on CBS "Inside Edition", in the sad story of the Eagles Reserve HOAor the story of the Morganwoods Greentree HOA which just seems to be developing into a major lawsuit. Many homeowners don't think it's a coincidence if the same attorney is prominently featured in all these cases.
But, armed with a "legal opinion" and determined to go ahead the board met on Jan. 13, 2003 in 7:00 PM in the Crestview Baptist Church. Please read this interesting transcript of the meeting. The duly elected director, Gary Kauffman, read a letter in the record of this meeting stating facts why this petition shouldn't be valid and why his removal should be done according to the Florida Statutes, if at all. Nothing changed their mind. A director of the board who was unwilling to vote on this issue was reprimanded by the association manager, Lou Ellen Wilson, and told she could not abstain and that she MUST vote. Interesting exchange!
Not only is Lou Ellen Wilson sitting at the table of the Board of Directors, dishing out what seems to be clearly legal advice -- normally considered UPL (Unlicensed Practice of Law) by the Florida Bar -- she even chaired the meeting during one recent case.
And so it happened what was inevitable:
the "unwanted" director, initially officially elected by a majority, was
"removed" and the next in line, clearly beaten at the election, promoted
In this case these "directors" know that they will not be challenged, since the removed person is retired and doesn't wish to expend the finances to challenge their "doings" in a court of law.
Other boards are even more obvious when making sure that only members of their "clique" are sitting on the board. Annual meetings are being canceled or enough proxies declared "invalid" to assure there is no quorum present. And no new meeting will be called. They just appoint themselves for the next term. This is pretty common and happens in many associations.
And since there is no government agency regulating homeowners' associations, many of these boards just get away with it, very often with the help of the attorney on retainer and the hired management company. They know their jobs are safe, if they make sure that these boards are kept in office!