board member censoring posts to listserv

Our community is only a few a years old, and when the builder turned the majority of the board over to the community, the first thing our new board did was decide to create a community listserv. One board member agreed to undertake this task, went door-to-door collecting emails, and put together a community google groups forum. Since then, the same board member has sent out numerous posts and evites both explicitly stating that the post/evite was from the HOA or implicitly stating as much by saying it was from the "_____________ (insert trademarked name of community) Community." The board and community have fought with him on this issue numerous times -- there's been nasty drama on the listserv, hours of time wasted across multiple meetings, and unnecessary disorderly nonsense at HOA meetings (which most recently resulted in an attendee having a heart attack during the meeting). Also problematic, when the board wanted to send out a clarification email to the listserv regarding the last personal evite that went out to the entire listserv on behalf of the "community," the same board member, who remains owner/manager of the listserv, changed the vast majority of the listserv recipients' email notification settings so that they would not receive it. He is also now declaring the listserv to be his own "personal and private" listserv. So while the listserv was originally and HOA endorsed/sponsored venture, it has turned out to be something quite different from what everyone's understanding was at the time it was endorsed and people signed up for it.

This board member is a source of major disruptions in every meeting, and he prevents the board from getting anything done by completely hijacking the meeting and subjecting everybody to really long incoherent diatribes in which he claims people are trying to "remove him from the community," despite "all the good he has done for the community," everyone in the community is "racist" (He is Indian, and to prove this point he referenced a very public dispute he had with another Indian in the community) ... blah blah blah. Anyway, needless to say, meetings are not well-attended, and management consistently leaves all drama and conflict out of our minutes. While I'm considering seeking his removal from the board, I'm not sure people are aware of half of the problems he causes, and I'm not guaranteed to get the necessary 51% of the community to agree to his removal. (FYI, we have 7 people on the board, he is in the minority on the listserv and holding himself out as the HOA issues, but the two people that stand with him are willing to continue enabling him. For example, the HOA attorney has already said he would write a cease and desist letter, but, despite this they claim "there's no problem here;" "freedom of speech [protects false advertising];" and "the community doesn't care about this issue, let's talk about something else.")

Does anybody have any suggestions for how to deal with this individual or otherwise move forward?

Does anyone know whether his censoring/selectively censoring posts on what was supposed to be a community listserv violates any laws other than maybe the Open Meetings Act?

Also, does anyone view our board's not being able to function for over 2 years now as a failing on management's part? Is the HOA manager supposed to enforce Robert's Rules or some semblance of forum decorum at meetings? If not, do we need security to do so?

Sorry, I know there's a lot in here, but any help on any issue would be much appreciated. Thank you!

Big question #1: Who owns the listserv?

Whoever owns it should have the right to control it. So it's important to clarify ownership before you do anything else.

You say that the board made the decision to create the listserve. And someone volunteered to take on that task. So when he went out and collected information, he was doing so under the authority of the board - in legal terms, he was acting as agent for the board.

Seems clear to me that under the circumstances the board owns the listserve. And just like the board can give the authority to collect and manage listserve data, the board should be able to take that authority away.

Big question #2: Who is the board going to authorize to manage the listserve?

If the person who is currently managing the listserve is exceeding his authority, then you need to replace him.

Your immediate concern is having someone else with the skills to take on that responsibility.

But as long as you leave it in his hands, you'll continue to be disappointed because history has shown that he'll continue to things the way he wants to.

Big question #3: A letter from the HOA lawyer might be a good idea. But IMO, it would be better that the lawyer send a demand letter to turn over the listserve to the newly authorized person. What do you think?

Thank you.

I agree with you that the board should own the listserv. And we have tried many times to tell him that it's inappropriate to misrepresent the board or association, and we've also pointed out that basic etiquette and common sense would require an individual hosting an event to put their name down as the host. But there's no getting through to him or his enablers. While I also agree that the board should own the listserv and can send a demand letter to turn it over, I believe he will ignore the demand letter (or any cease and desist letter) and I don't believe the board is willing to undertake the expense of litigating the issue when it's easy enough to create another listserv. (Finding someone with the skills to manage it is also no problem.) What won't be easy to do is get people to sign up for another listserv, or make it clear to everyone who signed up for a community listserv that the current one has nothing to do with the HOA.

What may not have been completely clear in my original post is that our managing agent is fed up with our community and wants to put an end to this issue and associated drama without saying anything that might fan the flames. At any rate, the majority of the board asked management to send out a clarification letter regarding the listserv at the last meeting, and he emailed the following through management's own software system/platform and also posted it to the listserv, "Dear Residents, Please note that official HOA communications will be distributed from [management's online] system. . . . The Google Group should now be used for social communications only." I asked management to send a followup email that actually clarified who owns the listserv, but I was ignored.

Perhaps a letter from an attorney stating to cease and desist utilizing the Associations name or representing that any mailings are from the HOA or the Board.

The larger problem I see is the issue of ever having another similar function.
This is because those who are complaining will likely never provide the Association with their e-mail address again.

Thank you everybody. I will ask the board to pursue a letter from the HOA attorney. (I previously asked for a quote re: a cease and desist letter addressing only the misrepresenting the association issue, and the atty said it would take about an hour of time and quoted us $365-400. I'm sure adding a demand to it for the listserv will take another half hour or more of time.)

Also, I've been doing some research and was wondering if anybody thinks it might be worth pursuing felony/criminal charges under the federal and state Wiretap Acts. (18 U.S.C. Secs. 2510-2511; Maryland has a similar statute that uses the exact same language as the federal statute.) As this board member was using the tools furnished by the HOA to prevent the board from conducting its business while intercepting and acquiring the communication, I think all criteria required to violate the law are met. (I ask because convicted felons can't serve on the board.)

Thanks again!

I'm sorry, but the Board said he could do this.
The Board, per your posting, has not removed him from managing the listserv (which should have been their very first move). The Board has only reprimanded him for claiming to speak for the Board.

NpS -- So that's actually what I was a little unclear on. I know I can't bring criminal charges myself. However, I thought the state only opted out of pursuing crimes they couldn't prove. Are you saying the law is optional if the DA doesn't find the offense interesting enough?

This sounds like a typical HOA attempt to get someone else to fight your legal battles. Do not hold your breath waiting for that to happen.

Your board needs to light a fire under its own attorney to file an injunction against this board member. The court should be asked to order him to hand over all information he collected under the pretext of being part of an official HOA project, to prevent him from using the information he did collect, and to prevent him from claiming to be acting on behalf of the association and/or using its name. Yes, it will cost money and the only good thing is that the court may order him to pay all costs.

Well, the Wiretap Act angle was just my idea -- a secondary thought, really. I realize the board would still have a legal battle to fight re: the listserv and the association's name, but it would also be GREAT to remove him from the board as a convicted felon. (He's not going to resign.)

I'm not sure that any of the applicable laws have fee-shifting provisions that would make the losing party liable for all fees, but your thought reminded me of an indemnification article in our bylaws. Specifically, it says:

The Association shall indemnify every officer and Director of the Association against any and all expenses, including counsel fees, reasonably incurred by or imposed upon an officer or Director in connection with any action, suit or other proceeding [] to which he or she may be made a party by reason of being or having been an officer or Director of the Association, whether or not such person is an officer or Director at the time such expenses are incurred. The officers and Directors of the Association shall not be liable to the Members of the Association for any mistake of judgment, negligence, or otherwise, except for their own individual willful misconduct or bad faith. The officers and Directors of the Associations shall have no personal liability with respect to any contract or other commitment made by them, in good faith, on behalf of the Association and the Association shall indemnify and forever hold each such officer and DIrector free and harmless against any and all liability to others on account of any such contract or commitment. Any right to indemnification provided for herein shall not be exclusive of any other rights to which any officer or Director of the Association or former officer or Director of the Association may be entitled.

Assuming, this board member failed to adhere to a demand or cease and desist letter, and we pursue a court-issued injunction and the court issues one in our favor, I know there's an argument to be made that the Association would not be liable for his fees -- as the injunction could indicate that the actions were willful, dishonest/made in bad faith. However, prior to an injunction being issued, if he takes the demand/cease and desist letter to an attorney, who then helps him understand and craft a response, is the Association likely to be liable for his atty's fees without a specific finding that he acted in bad faith or undertaking legal battle over attorney fees?

The statutes regarding who pays what in a civil case would most likely be found under state statutes applying to the courts and civil proceedings. It is not likely to be part of the HOA statutes.

It appears that if an action was brought against the troublesome board member that the association would be required to provide him with defense counsel. If you have D&O (director and officer) insurance, your carrier will select an attorney for him. Your HOA attorney has a rather obvious conflict of interest and could not represent both him and the board. Even though an insurer is not liable for deliberate acts they nonetheless have a duty to provide a defense. The HOA would initially be liable for payment of the deductible.

Assuming that you can prove your case against the board member, the court has a great deal of latitude as to whether to compel him to pay some or all legal fees. The fact that his actions have been deliberate, deceptive, and unauthorized plus the fact that he has reneged on past promises would all work against him. He brought this on all by himself and did everything to perpetuate the problem. The judge will likely bury him in costs.

"Actual malice" is a legal standard that a judge can apply in extreme situations, but it's very rare.

Maybe ... if you demand that he turn over the listserv, AND he fails to do so for a very long time, AND your HOA has real financial losses as a result, you have a slim chance. But even in those circumstances, don't think it will happen.

The bar for "actual malice" is much higher than anything you've identified.

See:

https://en.wikipedia.org/wiki/Actual_malice

All we've done is ask the atty for a price quote to write a cease and desist letter. I'm confident that the majority of the board will approve consulting with an atty and issuing a cease and desist and demand letter. However, the association has spent a couple thousand dollars on attorney fees in just the last two years -- all on small stupid issues relating to various acts of buffoonery by the same board member. Management is also against us spending more money on an atty and has expressed that it would be "easier and cheaper" to start over with another listserv than to make this board member do anything -- it would be free and setting up a new listserv with the 75 address in our community directory would take five minutes. (Note, the current listserv has approx. 15 more emails than that.) Further, nobody on the board thinks this guy will understand, appreciate, or comply with a letter from our atty. This makes the cost of litigation a real issue, and, right now, the majority of the board is unwilling to back a decision to litigate -- I realize that may change once we have further input from the atty. But, long story short, yes, I was wondering -- before advocating that the board litigate if needed -- if there was any chance we could shift atty fees to a losing party because that might make the cost of litigation an easier pill to swallow. (Also, the deductible on our D&O insurance is $5k.)

Thank you for the input. I know I've wasted enough of everyone's time, including my own. We can start with the first step in the process and see where it takes us.