RECALL MEETING À LA ROBERT KAYE, ESQUIRE

An Opinion By Jan Bergemann 
President, Cyber Citizens For Justice, Inc. 

Published December 1, 2008

Honestly, Florida 's condo statutes are often a little confusing, leading to wrong interpretations and confusion among the owners! That's why some boards hire attorneys with their “expertise” to help them out. 

When a recall petition was served on some board members of the LIGHTHOUSE POINT PLAZA CONDOMINIUM APARTMENTS, INC., a recall meeting was called according to FS 718.112(2)(j) and took place on November 24, 2008.

You don't necessarily need to be Einstein to understand the recall provisions as defined by the statutes, but the following transcript of the recall meeting shows that even attorneys should familiarize themselves with the provisions before chairing a recall meeting. 

And even if attorney Robert Kaye from the law firm of Robert Kaye & Associates P.A. in Ft. Lauderdale told board members and owners at different occasions, "You are not recognized," the big question is: Who recognized Kaye as the Chair? There surely wasn't a discussion at the beginning of the meeting! Even if attorneys have the right to put ESQUIRE behind their names, it doesn't give them the right to assume powers not specifically given to them. Association attorney or not -- they are guests -- or hired hands -- at association meetings.

  
Just read the transcript. It would be funny if it weren't so sad!

When reading it -- please never forget:

The Chair is a licensed attorney who charges for his services!

  

TRANSCRIPT OF RECALL MEETING

HELD AT LIGHTHOUSE POINT PLAZA

MONDAY, NOVEMBER 24, 2008

 

Association attorney, Robert Kaye [RK], began the meeting at 2:35 p.m. at the North Clubhouse, Lighthouse Point Plaza Condominiums, 4500 N. Federal Highway , Lighthouse Point, Florida. He was not asked to chair the meeting by board president Maryann Casatelli.

 

Pledge of Allegiance was recited.  Present were Bert Aufreiter [BA], Una Fay Bowen [UFB], Maryann Casatelli [MAC], Patricia Monahan [PM], Anne Nappo [AN], Dianne Richards [DR] and Maggie Williams [MW].  Rosemary Hansen [RH] was on the speaker phone. Also present were Russell Fields, community association manager, two other personnel from Davenport Management, and an associate from Robert Kaye’s law firm.

 

Kaye:  Notice of meeting with agenda was posted on condo property by Bert Aufreiter and Bill Daum at approximately 11:30 a.m. on Saturday, November 22, 2008, more than 48 hours’ notice for this meeting.

 

First order of business is to appoint a replacement for the vacancy of board director.  Maryann Casatelli moves for Dennis Plaska to be nominated.  Maggie Williams contests such an appointment.  Mr. Kaye states “You are not recognized”.  Ms. Williams states “This is a Recall meeting”.

 

Owner Robert Schmidt states “This is a recall meeting”.  Mr. Kaye states to him “You are not recognized”.  Mr. Schmidt states “The only thing to be done at this meeting is the recall”.

 

RK:     Your objection is noted.  You will have your chance to speak later.

 

MW:    We want to know if you will certify this Recall.

 

RK:     It’s a board meeting.

 

MW:    No, it is not; it’s a board meeting for a Recall.

 

Owner Thiam Bowe states “It is a board recall; that’s why we are here”.

 

RK:     Mr. Plaska, are you accepting the nomination?

 

DP:     Yes.

 

RK:     Board members, are you in agreement?

 

Unison:          Aye.

 

RK:     Opposed?  Maggie Williams and Dianne Richards oppose.  Five for and two against.

 

RS:     You have to address what is to be done first.

 

RK:     Next order of business is to consider the proposed recall agreement submitted by the board.

 

MW:    You are out of order.

 

RK:     We will take a motion not to certify the recall and to authorize the attorney to certify the Petition for Recall relative to Una Fay Bowen.

 

MC:     I move.

 

PM:     I second.

 

RK:     Motion has been made by Maryann Casatelli and seconded by Pat Monahan not to certify the recall as to Una Fay only and to certify the recall on the other three board members being Maryann Casatelli, Bert Aufreiter and Anne Nappo.  The reason for this particular situation is that the proposed Recall consisting of 114 agreements which were submitted, of only 107 were submitted for Una Fay – you need 109.  You do not have a majority for one of the three [sic].  It was decided by those [3] others involved not to confirm the signatures [on the ballots] and to accept the recall, but to submit the [proposed recall of Una Fay] to arbitration. 

 

MW:    When will I receive the copy of the rejection [appeal] of Una Fay.

 

RK:     I do not understand the question.

 

RS:     To see the ballots that are not correct. Under the recall law you cannot have board members go out and solicit, coerce or otherwise antagonize other people to change their vote.  I saw the board member in front of me present the official document.

 

RK:     You couldn’t be more wrong. You show me the law.

 

RS:     No, you show me the law. You’re the attorney.

 

RK:     I’m not here to argue with you. We have a motion from the board.  Is there any discussion by the board on the motion?

 

Thiam Bowe:  You have not allowed anyone to speak.

 

RK:     Not now; I will allow members to speak but right now it’s a board meeting.

 

Another owner, and Thiam Bowe say owners and board members need to give their name and unit number when speaking.

 

MW:    Do you have copies of what you are proposing here?

 

RK:     They’ll be submitted in a Petition for Arbitration.

 

MW:    As the Representative on the Recall, you need to give me the copy.  I have 24 hours to look at them.

 

RK:     If you say so.

 

Owner:  Don’t you know, sir?  Don’t you know the law?

 

MW:    And you are saying Una Fay is the only one that is...

 

RK:     Not being contested.

 

MW:    And it’s 107 votes for Una Fay?

 

RK:     Not sufficient.

 

RK:     Board members vote, Maryann?

 

MAC:  Here.

 

RK:     Either yes or no.

 

MAC:  Yes.

 

RK:     Una Fay?

 

UFB:   Here.  Yes to submit it to arbitration.

 

Pat Monahan, Bert Aufreiter and Anne Nappo and Rosemary Hansen vote Yes.  Dianne Richards and Maggie Williams vote no.

 

DP:     Yes.

 

MW:    He’s not approved as a board member.  You named him but he has to be ratified at the next board meeting.  He does not have a vote.

 

RK:     Since the proposed recall does not name a majority of the board to be recalled, those individuals named on the document to replace the board members would not be elected, in the Statutes.  The board members that are currently in place will appoint to fill any vacancies that exist at a later time.  It is not their desire to do so now, as set forth in Sec. 718,112 (2)(j), Florida Statutes.  If the board chooses to fill the vacancy at a later time, it can be done.  Otherwise if the board chooses to wait until the annual election and operate with a 6-member board, the board can do that as well.  It’s the choice of the board going forward.

 

At this point we can open the floor to discussion on the recall issue.

 

TB:      I am Thiam Bowe, Block H, 270.  I do not often come to meetings and I am totally appalled that we are spending legal money for you to come without board approval and for people who are incompetent for making small things that could avoid legal [counsel] into issues for you to come in.

 

RK:     That is not to do with the recall, but thanks.  Anyone else?

 

Owner Jackie Berning: This is my first meeting.  I am in 122.  I have the same question.  Why is a lawyer at a board meeting?

 

RK:     Majority of the board requested it as there are technical legal issues involved and that’s their right.

 

Owner Mavis Fisher:           And two other lawyers.

 

RK:     No, they are from the management company.  One lawyer with my office is here for observation.

 

RS:     Rob Schmidt, 240.  My question is, at whose expense is the second attorney attending?

 

RK:     Mine.

 

RS:     We put you on notice, as you weren’t here for the last meeting, we put on notice that any moneys that would be spent , that you would have to absorb that on your own.

 

RK:     You do not have the right to put the board on notice what they can or cannot spend.

 

RS:     That is why we have a Recall.  If you contest it, it has to be at your own expense.

 

RK:     Wrong.

 

RS:     Show me where in the Statute book, where it says that.

 

RK:     I suggest you get your own attorney.

 

RS:     I don’t need, I have a Statute book.  I don’t need my own attorney.

 

RK:     You clearly do, sir, to advise you.  I am not your attorney.

 

RS:     You are my attorney.

 

RK:     I am not here to argue with you people.  I am recognizing the gentleman in the back.

 

TC:      My name is Tom Chrietzberg, 268 H.  I have lived here for 20 years.  I have had the pleasure of seeing more representation in the past two years than in all the 18 years before.  And I see our legal bills have quadrupled, and yet you have the audacity to say “I am not your attorney”. We are the ones who foot your bill, we pay you to represent us.  If you do not represent us, you need to inform us of that now and you can just leave. [Inaudible] get insulted some place else because your help is not needed.

 

RK:     I am not insulted in the least. You are out of order because it is not on the issue of the recall.  Anyone else have a question on the recall?  If not, we need to move on to the next item on the agenda, which is whether or not to reorganize the offices of the board as certain officers are recalled at the end of this meeting.

 

DR:     Why don’t they just leave now?

 

AN:     We live here and we can sit here just like you can and they can.

 

DR:     Since you have been recalled you can sit in the audience.

 

AN:     Don’t tell me I should leave.

 

RK:     The office of president will be vacant after today so if someone would like to make a motion on filling that seat, now would be a good time to do that.

 

MW:    That’s out of order.

 

DR:     We need to hold off as we are going to be bringing in other people and then we’ll make a decision about who is president.

 

RK:     You don’t function in the meantime.

 

DR:     Well, we will function because it’ll be very fast.

  

TB:      I will run; will you approve?

 

AN:     Sure, I’d vote for you, I think if you got elected, yes I’d vote for you.

 

RK;     You don’t get a vote.

 

MF:     Is this vote by the three members who are left on the board?

 

RK:     No, there are currently six [sic] members left on the board.

 

MW:    This is something that, after the committee for the recall has talked, then it can be decided, but it is not ...

 

RK:     It has nothing to do with the committee ...

 

MW:    Yes it does.  I have been legally advised by the Ombudsman and our lawyer ...

 

DR:     They are going to be replaced by the people on the recall form, they are going to be replaced today.

 

RK:     To the board?

 

AN:     I am thrilled. [Inaudible}

 

MW:    Three people out of those four need to come up here.

 

PM:     I move to appoint Dennis Plaska as president of the board.

 

RK:     Do I have a second?

 

MW:    You cannot do that.  You need to read your docs.

 

RK:     Do I have a second?

 

UFB:   I second.

 

MW:    Robert Kaye, you are illegal by even suggesting this.

 

RS:     You didn’t answer my question.

 

RK:     In a second.  Is there any discussion among the board?

 

MW:    It’s illegal.  He isn’t even ratified yet.

 

DR:     Una Fay is maybe a little bit incompetent to be on the board.

 

RK:     Is there any discussion among the board members about the question.

 

[All speaking at once.  Some words emerge on the tape.]

 

PM:     ... stealing our money.

 

DR:     No, no, you can’t do this.

 

RK:     Those remaining board members ...

 

MW:    Would you like to say that again?

 

RK:     All in favor?

 

DR:     You are carpetbaggers.

 

AN:     You are delusional.  You are a sneaky woman and a jerk.

 

RK:     Dianne, are you in favor of the motion?

 

MW:    It is illegal.  There is no legal motion.

 

AN:     She made me sign checks that I was not supposed to sign.  I know what I’m talking about.

 

RK:     Dennis, yes or no.

 

DP:     Yes.

 

RK:     Okay, then .... [inaudible]

 

RS:     He has to get approval.

 

MW:    He’s been nominated but you have to wait.  That shows how much you know  about the law.

 

AN:     I think you would have to, too.

 

RK:     There is no other business to come before this meeting.

 

AN:     You know what, you are very right and that goes for both sides of the board.

 

RS:     Dennis has not been approved as the president.  It’s against the law to go out and solicit.

 

RK:     There is no other business for this meeting and I will make a motion to adjourn.  Motion to adjourn anybody?

 

PM:     I will make a motion to adjourn.

 

RK:     Meeting adjourned at 3:50 p.m. [sic, 2:50 p.m.] We’re done.  Thank you all for coming.

All in all, the meeting left quite a lot of people shaking their heads. Seemingly, the recalls of board members Maryann Casatelli, Bert Aufreiter and Anne Nappo were certified -- effective immediately -- and the recall of Una Fay Bowen was disputed. [Merriam Webster defines the word “immediately”: without interval of time, straightaway.]

Let's make one thing very clear: As soon as the recall petitions are served on the board, there is no longer any need for recalled board members to ring doorbells and harass owners asking them to rescind their vote. That's supposed to stop the harassment -- but some people will never learn!

All in all, this meeting showed that either there was a meeting behind closed doors where all the issues were agreed upon before this public meeting -- making this meeting just a farce -- or Mr. Kaye is an excellent mind reader who knows what the people want without even asking them!

(j)  Recall of board members.--Subject to the provisions of s. 718.301, any member of the board of administration may be recalled and removed from office with or without cause by the vote or agreement in writing by a majority of all the voting interests. A special meeting of the unit owners to recall a member or members of the board of administration may be called by 10 percent of the voting interests giving notice of the meeting as required for a meeting of unit owners, and the notice shall state the purpose of the meeting. Electronic transmission may not be used as a method of giving notice of a meeting called in whole or in part for this purpose.

   

1.  If the recall is approved by a majority of all voting interests by a vote at a meeting, the recall will be effective as provided herein. The board shall duly notice and hold a board meeting within 5 full business days of the adjournment of the unit owner meeting to recall one or more board members. At the meeting, the board shall either certify the recall, in which case such member or members shall be recalled effective immediately and shall turn over to the board within 5 full business days any and all records and property of the association in their possession, or shall proceed as set forth in subparagraph 3.

  

2.  If the proposed recall is by an agreement in writing by a majority of all voting interests, the agreement in writing or a copy thereof shall be served on the association by certified mail or by personal service in the manner authorized by chapter 48 and the Florida Rules of Civil Procedure. The board of administration shall duly notice and hold a meeting of the board within 5 full business days after receipt of the agreement in writing. At the meeting, the board shall either certify the written agreement to recall a member or members of the board, in which case such member or members shall be recalled effective immediately and shall turn over to the board within 5 full business days any and all records and property of the association in their possession, or proceed as described in subparagraph 3.

  

3.  If the board determines not to certify the written agreement to recall a member or members of the board, or does not certify the recall by a vote at a meeting, the board shall, within 5 full business days after the meeting, file with the division a petition for arbitration pursuant to the procedures in s. 718.1255. For the purposes of this section, the unit owners who voted at the meeting or who executed the agreement in writing shall constitute one party under the petition for arbitration. If the arbitrator certifies the recall as to any member or members of the board, the recall will be effective upon mailing of the final order of arbitration to the association. If the association fails to comply with the order of the arbitrator, the division may take action pursuant to s. 718.501. Any member or members so recalled shall deliver to the board any and all records of the association in their possession within 5 full business days of the effective date of the recall.

  

4.  If the board fails to duly notice and hold a board meeting within 5 full business days of service of an agreement in writing or within 5 full business days of the adjournment of the unit owner recall meeting, the recall shall be deemed effective and the board members so recalled shall immediately turn over to the board any and all records and property of the association.

 

5.  If a vacancy occurs on the board as a result of a recall or removal and less than a majority of the board members are removed, the vacancy may be filled by the affirmative vote of a majority of the remaining directors, notwithstanding any provision to the contrary contained in this subsection. If vacancies occur on the board as a result of a recall and a majority or more of the board members are removed, the vacancies shall be filled in accordance with procedural rules to be adopted by the division, which rules need not be consistent with this subsection. The rules must provide procedures governing the conduct of the recall election as well as the operation of the association during the period after a recall but prior to the recall election.

 

(k)  Arbitration.--There shall be a provision for mandatory nonbinding arbitration as provided for in s. 718.1255.

ONE THING IS SURE:

THE CHARADE WILL BE CONTINUED!


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