Rogue Director

We are a Board of five in California. We have a rogue Board member, who is the Vice President, that has been forwarding/sharing Board emails and discussions held in executive session to other owners and renters.

The other four Board members want to make this VP a Member-at-Large, form an Executive Committee and leave this individual out of executive session meeting and Board emails. They will still have access to all contracts and information to be voted on, just not allowed to be part of the discussions.

Anyone see an issue with this approach?

Melissa

I think you are mis-understanding our situation.

Our email discussions should be private and not shared with anyone not addressed to, until they are voted on in open session. Same goes with sharing contract information or homeowner delinquencies with others before we vote on them.

This Director has potentially put this Association at risk for acting outside of their role. I happen to be the President and also a certified property manager. This Board has always put the interest of our Association first and foremost. This individual has their own personal agenda.

Sorry .... Here is the full text of the summary:

Summary. Except for emergencies (described below), a majority of directors may not use email to discuss, deliberate and make decisions on HOA business items.

Cannot discuss via email anymore.

Thank you Ken was just getting ready to post that for other side of coin.

Richard ... depending on what is being discussed as only these type items should be discussed in Executive Sessions: personnel matters, an owner's delinquency payment plan, the identity of persons involved in disciplinary actions, and attorney-client privileged communications.

Some HOA's will use the excuse of "Executive Sessions" to have meetings which should be open to all members. Therefore, depending on what information was released outside the executive session then the individual could be digging a hole. They need to be aware that the executive session is allowed by HOA’s primarily to prevent violations of Federal or State privacy laws.

Surely they would not want to violate any Federal laws.

Simple fact … you cannot expect the member to be recused from any portion unless it would be a legal conflict of interest on items regarding themselves. If elected by the membership then the members expect their elected official to participate in all board matters. Everyone is expected to play together to their best ability until replaced or recalled.

The board can:

1. Censure
2. Ask for resignation (which board member can refuse)
3. Board can remove from “officer” position if appointed by board and not members.
4. Board can remove from board if appointed by board and not elected by the membership.
5. Membership can recall the board member if they do not appreciate confidential information being discussed with others.

http://www.davis-stirling.com/MainIndex/CensuringDirectors/tabid/1648/Default.aspx#axzz1nojgpGbA

Powers Unaffected. While expressing strong disapproval of a director's behavior, a censure does not remove a director from the board nor does it impair the director's ability to attend meetings, make and second motions or vote on motions, unless there is reason for recusing the director from a particular vote.

Request for Resignation. In addition to censure, a board can request a misbehaving director's resignation. However, the director can refuse. If he/she refuses, the board's ability to remove a director is quite limited. This is also true for the courts. Courts may remove directors from office but only for fraudulent or dishonest acts or gross abuse of authority or breach of duty. Corp. Code §7223. The membership, however, can remove a director with or without cause by means of a recall election (except for those directors appointed to the board by the board or by the court--such directors may only be removed with the approval of the appointing party. See Corp. Code §7222(a)&(f)).

The members and not the board potentially have ultimate control regarding the individual. Is this a board member the general membership would be willing to recall?

I wonder if this member isn't a kick in the pants the board needs to evaluate their actions? Sorry, but sometimes there is a bigger fish and you may be trying to swallow one...Honestly, sometimes the actions we think we are taking are proper and protective. In the end, sometimes they are not and only protective to ourselves.

What I am saying is the "Rogue" board member may be a reflection of what is going on with the rest of the membership. It seems if they are discussing topics outside the "executive meetings" it must mean there is an interest from the outside membership of what is going on in those meetings. You might want to stop and listen a bit.

It takes many fools to talk but only one wise guy to listen...Maybe it's time to become a wise guy and listen to what the fools have to say. This rogue member is your rise or downfall. The choice is yours by how you handle that situation. Handle it by a muzzle and that could indicate secrets...I'd just simply state the rules that certain information is for board only. However, the only board rule we had was NOT to discuss individual collections. Legal actions taken, contracts bidding/accepting, and all other issues were pretty much open for the membership to know.

Thanks for all the information. It appears the only other action available to the rest of the Board is legal action.

So you are saying this member should be sending out confidential conversations that happened in executive session to other homeowners? Why have executive session at all then if they are goign to do this. Are you saying this board member should be disseminating information to rentors who are not even legal members of the association?

We can argue what we want on the email portion, their HOA has gotten legal opinions and will have to live with the consequences if any...I see an issue with a board member going on their own.

I would remove him from his VP post, censure him and ask for his resignation. But, until he has resigned he has a right to be at all board functions.

Hi Richard, your citations of CA corps code, also davis-sterling.com, Executive Committee, seem to show that the rest of the board may form an Executive Committee to discuss, etc. confidential matters unless your docs state otherwise.

But it does sound like your board also should censure the director and remove him from office. So . . . do it!

Melissa, in Calif. personnel issues, owner disciplinary matters, potential litigation must be discussed in Executive Session. Boards can choose whether or not to discuss contracts in formation in Executive session.