CAN YOU REMOVE A PRESIDENT THAT HAS ALREADY BEEN REMOVED BY THE VOTERS?

Sometimes we get lucky and the political world mirrors what takes place in the condo and HOA world. The Senate is about to start a trial regarding the impeachment of Donald Trump. As we all at least understood the process—-the whole purpose of a trial in the senate is to see if the president needs to be removed from office, but in this case — he has already been removed in the last election. So, one could argue, what’s the point of having a “removal” trial in the Senate if President Trump has already been removed by the voters?

This scenario happens quite often in the condo and HOA world. Let’s say that a group of owners get together and want to remove the current president of the Board. They serve the Board with enough recall ballots but the Board decides to fight and not certify the recall. Now we are off to arbitration. Now let’s say the arbitration process is dragging on and it’s time for a new election in the community and the election occurs. The question then becomes SO WHAT HAPPENS TO THE PENDING ARBITRATION CASE BEFORE THE ARBITRATOR?

Here’s what the caselaw says:

In Greentree Condo Ass’n, Inc. v. Unit Owners Seeking Recall, Arb. Case No. 98-5427, Final Order Dismissing Petition for Arbitration (March 4, 1999), the arbitrator held that the recall petition was moot where an election for all positions on the board was held while the petition for arbitration was pending, even though the unit owners disputed the manner in which the intervening election was held. In Hacienda Del Sol Condo Ass’n, Inc. v. Unit Owners Voting for Recall, Arb. Case No. 01-3566, Final Order (September 14, 2001), the arbitrator held that an intervening election in which all board members subject to recall were re-elected makes the recall attempt moot, noting that if the owners wished to contest the validity of the intervening election, their recourse was to file a petition for arbitration pursuant to section 718.1255(1)(b)1., Florida Statutes. In Riviera Villas Condo Ass’n, Inc. v. Unit Owners Voting for Recall, Arb. Case No. 2003-04-5722, Final Order Dismissing Petition for Recall Arbitration (April 22, 2003), the arbitrator dismissed the petition for recall arbitration as moot due to an intervening election despite the unit owners argument that there were irregularities in the intervening election, noting that unit owners wishing to contest the validity of the intervening election could file a petition pursuant to section 718.1255(1)(b)1., Florida Statutes.

As you can see, all the arbitration cases say that when there is an intervening election, the attempt to remove the person from the board becomes moot. That would make sense. But we’re talking about Congress where common sense is hard to come by.

In fact, arbitrators have gone even further, and declared removal cases moot when the election is going to occur in the very near future. See: DORAL R.O. ASSOCIATION, INC., v. UNIT OWNERS VOTING FOR RECALL, ORDER ABATING ARBITRATION CASE and REQUIRING FILING OF STATUS REPORT Case No. 15-05-6235 January 27, 2016, Simms arbitrator.

At least in this scenario, it seems that when it comes to elections and removing of Presidents, Florida is certainly more on the ball than Congress is.

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