recall

First of all I am 100% in favor of the recall. The first time I heard about the recall was while I was gone on a trip. Toni Caylor, the author of the Petition, called me and asked if I would be willing to sign on as a Petitioner of the recall and I agreed. I’m sure this is the same way most of the petitioners were approached. I agreed because I don’t believe a Director should ever confront an owner in the manner Director Pessin did. And the Board took no action to sanction Director Pessin for his behavior. By the time I returned from my trip the recall petition was already being circulated. It took less than 2 weeks to get about 300 signatures. 

According to our existing bylaws, once the Petition is received by the Association an election must be set within 90 days. So under our bylaws the recall should have been set in December. The Board instead chose to set a date 150 days out. One has to wonder if Director Pessin participated in that decision.

According to a recently amended California Code section, recall elections shall be set within 150 days of the service upon the Association. But our bylaws state the election must be set within 90 days. The Board has argued that State Law trumps our bylaws. That may be true but our bylaws are not in conflict with State Law. By setting the recall election within 90 days, it would have satisfied both our bylaws and State law. The Board majority decided to ignore our bylaws. When the Board did this they presumedly decided to choose sides in the election. Instead of setting a date that complied with our bylaws - and was in the best interest of the Association - they chose a date that was in the best interest of Director Pessin. This was a breach of their fiduciary duty to the homeowners. This has also caused some homeowners to unfairly criticize the recall. To at least one Board member the Petitioners (by being criticized) are getting what they deserve. 

According to Jerry Conrad and our Association management, the cost of the actual recall will be approximately $12,500 plus legal expenses. The estimated total was around $20,000 when the recall began. According to Director Pessin the cost will be over $32,000. This amount was recently verified by our management. All requests for a breakdown of those legal fees have been denied.  Even if that figure is correct, that would mean the Board required over 70 hours of legal consultation. The recall is a very simple issue that requires very little legal analysis. The physical actions required by the recall election are handled by HOA Elections of California, not the Board. That is where the bulk of the $12,500 is spent. If the Board required 70+ hours of legal assistance then there are some serious questions that need to be asked. And if we had set the election in December according to our bylaws we would never have acquired that amount of legal consultation.

Normally, only the Board President or a representative of our management can contact our attorney for legal advise. Did the Board authorize an expenditure of $20,000? Was Director Pessin (who should have recused himself) involved in votes and discussions about the recall? He voted on an issue with the recall in the last Board meeting. Did our attorney give Director Pessin legal advise at the expense of the homeowners? Why would this election cost more than twice as much as any other election we have ever had? Our attorney is an HOA specialist. Why wouldn't he have most recall issues readily available? What could require 70+ hours of billing?

If there was no vote by the Board, did Director Conrad approve this outrageous expenditure? The Petitioners have no control over the amount of legal expenses spent by the Board. The Board has total control of the amount spent. The Board is required to represent the best interest of the ENTIRE Association. Instead, by their actions and comments they have clearly decided to only represent Director Pessin. The Board doesn’t know if 300, 1000, or 3000 residents are in favor of the recall. But they have taken the position that the recall has no merit. It's easy to claim expenses when you refuse to release the evidence of that claim. And the Board has never released the cost of defending the Association against Pessin's and Kim Fuller's conduct. Ask them for it.

Much has been made about the requirement that only 5% of our residents need to sign a recall petition. The signatures presented were over 100 more than the required number. Signatures were gathered at a time of year when many our residents are not present in the desert. Only 300 signatures were collected as a matter of expediency. The Board should have let the community decide the issue of recall. Instead the Board majority decided to benefit Director Pessin at the expense of the Association.