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CfD (Virginia)
Posts: 265
Posted:
I could really use the perspective of some of you here. Here is the situation:

We have a board member that is getting deliberately blocked from getting information to make informed decisions. It has been going on for a while, but has recently taken a very serious tone.

Our president and treasurer have been meeting with the association attorney without the knowlege of this one board member. In fact, they have deliberately kept it a secret from him. The associaton was billed for an email the attorney received from our property manager, but the property manager and president refused to provide the email to him when he requested to see it, actually telling him no.

This board member has requested documents used to remove a member from a committee over a year ago. This document was a written complaint against a homeowner who has no idea what he did wrong. It was never discussed openly, only in executive session, and the homeowner was essentially labeled a terrible person at meetings.

The problem is, when the homeowner asked what he did wrong or what the complaint was against him, the board said they had to "protect" the privacy of the individual that made the complaint, citing it was discussed in executive session, and never told him. He was labeled a mean, nasty person. Both the person making the complaint, and the person the board took action against by removing him from the committee, were on the same committee.

Fast forward a few months and it becomes apparent in a recent board meeting that a cease and desist letter was received by the board from the person who made the complaint. It was supposedly received by an attorney representing this individual. Their entire objective in the letter is to keep the clients name a secret, and even the attorney's name, from the asking board member, and the person the original complaint was made about. The letter was received 4 months ago and apparently was riddled with legal threats against the inquiring board member...but the other board members and property manager did not share it with him...deliberately. In fact, after learning of the cease and desist letter he requested to see it, but the property manager and president lied about its existence saying they didn't know anything about it. After more requests the property manager claimed he was making an executive decision and going against what he was directed to do by the board and finally shared it with the board member the letter essentially is written about. The president admitted that he lied about it in a recent meeting, and even admitted that our association attorney responded to the letter...but the inquiring board member has no knowledge of that and was not included in any discussion about it. All secret sauce.

What, if any, legal recourse does the board member deliberately left out of this process have?
AugustinD
Posts: 5,144
Posted:
My HOA had a board majority try to withhold records from the minority director a few years ago. The minority director finally hired an attorney. The attorney wrote a lawyerly letter to the effect that, "Are you really going to deny a director access to records?" My HOA's Bylaws have specific words about directors having access to all records. State statute firmly states that a condo's bylaws may be enforced in court, with the court being permitted (but not required) to award attorney's fees to the prevailing party. The HOA attorney wrote back a slanderous, expensive, maniacal, ego-driven letter but caved on the point.

I think it's important to remember that the HOA attorney, as an organization's attorney, can argue he has to abide by the board majority's position. The HOA attorney is not supposed to break the law or help others break it, but any HOA attorney looking to increase billable hours can easily rationalize that he was not facilitating breaking the law.

Denial of records to directors is pretty common, I am afraid.

The director should make another request to view the records, citing the appropriate parts of your HOA's governing documents and state law on the point. State that the Board majority has two weeks to respond. Then follow with a simple, civil, letter of demand, saying he will take this to court if the records are not provided two weeks from the demand letter's date.

Or hire an attorney. I bet this costs at least $2000, since the gov docs have to be reviewed.
TimB4 (Tennessee)
Posts: 21,062
Posted:
Quote:
Posted By CfD on 11/04/2016 9:52 AM

What, if any, legal recourse does the board member deliberately left out of this process have?

Legal recourse would require discussion with an attorney.

Quote:
Posted By CfD on 11/04/2016 9:52 AM

This board member has requested documents used to remove a member from a committee over a year ago.

Is this you? I ask, because I expect that the Board member in question is your friend and, if I recall correctly, you were removed from a committee.

Personal opinion, the Board member should not have bothered to check into the situation.
They should have simply moved forward. This is because they (and you) knew the makeup of the Board and now this individual is limited in what changes they can make within the Association. The unintended consequence of the action of looking into the issue.

Potential options for the Board member:

Make a complaint to the CIC Board that all members are not being informed of meetings or that AWMs do not have unanimous consent - utilize the authority required to discuss the issue with the attorney.

Seek legal action through the courts to be granted access to all records. (likely will take more time then they have on the board)

Inform the membership of the lack of access to the records an use it as a campaign rally to optain proxies and recall the board or not reelect.

Potential options for the member who was removed from the committee:

Seek legal action for access to all records
CfD (Virginia)
Posts: 265
Posted:
You are right, and thanks Tim.

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