"If an individual serving on a five-member California HOA board must recuse himself from voting on a review of a proposed physical change to the separate interest of said board member, who would cast the deciding vote in the event of a tie?"
- Paul from Rancho Mirage, CA
The answer, it seems to us, is embedded in your question itself: You are voting on a proposed physical change. The default, then, would normally be the status quo. If there is no majority vote approving the change, then no change is approved, and life would go on as if no vote were ever taken. But let's say there's a situation where a decision has to be made, one way or another, and there's an even split among board members. How does one resolve tie votes?
Let's assume that one of the members has a clear conflict of interest, and therefore his or her participation in the matter - essentially reversing the recusal - is unsatisfactory. What happens then?
Well, that's where the president of the board of directors gets to exercise some leadership, isn't it? Do you have a real leader in your president? Or is he or she a note-taker and figurehead, perhaps better suited to the role of secretary or treasurer?
The best way to go is for the president to exercise some coalition-building skills and find a way to persuade or compromise through the crisis. If the president was well-chosen in the first place, this is precisely what will probably happen, given a bit of time.
Look to the bylaws
A well-drafted set of bylaws may well anticipate this situation, and provide a workable method to resolve the deadlock. For example, in the event of a tie, the bylaws may state that the president of the board receives two votes. If the board president has recused, then you have another problem - but if the people who drafted the bylaws were prescient enough, they may have included a hierarchy or method for identifying an acting president or temporary president for this purpose.
If that's not in place now, it's probably a good idea for the board to adopt some anti-deadlock language in the bylaws as soon as the current crisis is resolved.
Another option: Have the recused resign from the board. This might happen if the conflict of interest is insurmountable. Once you have a board vacancy, you could then hold a special election to elect another board member.
This has the advantage of kicking the decision and the control back where it belongs: with the condo owners and association membership itself.
Meanwhile, a few hints to navigate the rough waters that seem to be ahead:
- Stick to parliamentary procedure, using Robert's Rules of Order or whatever set of rules your board has adopted. These rules have a way of keeping things from getting too personal and preserving comity and the potential for compromise.
- Don't get emotional, and work to keep other members from getting emotional or digging in too far. There will be a way out.
- Don't be too proud to bring in a mediator if needed. These trained professionals are experts in the art of finding compromise. They don't work for free - expect to pay $200 to $300 per day and up, plus travel costs. But mediation is likely to be much cheaper than continued deadlock and eventual lawsuits.
If that should fail, however, we can look to the California Corporations Code, Section 7225. In the event of a crisis where a deadlocked board with an even number of directors are irreconcilably split, and there is danger that property, activities or business will be impaired or lost, members or directors representing not less than one-third of the voting power of the organization may petition a county superior court judge to appoint a provisional director.
More information, including the text of the law can be found here.
To be honest, petitioning a court judge to appoint an outsider to meddle in your board's affairs seems like it could be counterproductive. Plus, the court can set the compensation for the provisional board member. This, plus all the court and legal fees that will undoubtedly attend such a move, would put the court-appointed director firmly in the "last resort" column. In most cases, it's going to be better for the board to work on whoever's the most wobbly in order to break the tie. It's amazing the horse-trading that can go on when people of goodwill are determined to make things happen.
Alternative dispute resolution and lawsuits in California
Under California Civil Code Section 1369.510 and following, condo boards must enter into alternative dispute resolution (ADR), which involves negotiation, mediation or arbitration, prior to entering a lawsuit, in most instances. If there is an impasse, and the board cannot resolve it through normal means in a timely manner, it's usually best to go ahead and enter ADR and shake things up.
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