Former Board Officer Won't Release Records to New Officer Without Conditions

Started by IndieS • 13 replies • 1497 views

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IndieS (Colorado)
Posts: 79

Posted:

Gosh what a stupid mess.

Last month, our Board removed an officer and elected a different board member to fill her role.

Prior officer has been sulking, and likes to be in control.

The former officer won't hand over her records unless the new officer sits with her for several hours, going over each piece of information in the file, and cosigns a form indicating the new officer has fully reviewed each record.

Old officer won't turn over the records to anyone else on the board without going through a this process.

There is nothing in our bylaws that requires any officer to go through these contortions and no one in the community recalls any previous officer ever having to go through this process.

Colorado Law is silent as to this approach to HOA record transfers.

New officer just wants the records turned over without additional requirements.

President has instructed old officer to just turn over the records to new officer. Old officer refuses.

Seems silly to involve the police, as old officer is willing to turn over the records, but only on her terms.

Yet, new officer doesn't like being manipulated and is not in the mood to sit with this person for several hours while she goes through this process.

We have LOTS of problem finding willing board members in our small community, and new officer is ready to quit, which is exactly what old officer wants.

Why do adults behave this way?

Advice?

TimB4 (Tennessee)
Posts: 21,059

Posted:

You don't indicate what Office.
I'm going to expect it's the Treasurer.

To be honest, it makes sense to go over the financials with the past treasurer.
Why not simply agree to meet at a specific time and indicate that the meeting will last for 1 or 2 hours. If the records are so messed up that things can't be explained in that amount of time, then there is more to worry about.

At the very least, the records will be in front of the individual who can then simply gather them and leave.

IndieS (Colorado)
Posts: 79

Posted:

The financials are very straight forward. We have a ridiculously small annual budget with obligations for paying real estate taxes, income tax preparation fee, registering yearly with the SOS, and minor office fees. Yearly expenditures are generally in the $250 range. New officer does not want to go to old officer's house and old officer refuses to go anywhere with records. It is childishness all around.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Then go legal on them and have your attorney draft a letter instructing the previous officer to produce the records or face legal action.

PainintheA
Posts: 43

Posted:

ditto Tim

IndieS (Colorado)
Posts: 79

Posted:

LOL -- The cost of hiring an attorney would be our biggest expense in years! But we may have to do it. Thanks for listening.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Indie

I do not think just a letter would cost that much. Time to put her in her place.

KerryL1 (California)
Posts: 14,550

Posted:

In CA, Boards may form "executive committees." Your entire board, Indie, except for the angry ex officer could be on it. You would not have to include her in any business until until she's ready to cooperate and turn over the records. It'd be a sort of discipline.

You also red a letter from the entire Board demanding she turn over the records, not just from the president.

The "Records," I'd think, belong to the office and to the HOA not to any individual person.

DaveD3 (Michigan)
Posts: 796

Posted:

I would fire a shot across her bow by way of a letter from the board.

"XXX records are the property of the association and must be turned over. If they are not turned over within 48 hours (insert date/time), the board will seek relief via the legal system, up to and including a court order if so required"

That just spewed from my keyboard, but you get the idea. Short, not-so-sweet, to the point. Cough up or we go to court.

I would expect an attorney's letter to be similar. That's shot #2 that should come as soon as practical after the 48 hours has lapsed.

AugustinD
Posts: 5,144

Posted:

In my experience, the police would see this as a civil matter and will not involve themselves.

You say your HOA's annual expenses are only about $250. I figure the cost of an attorney writing a letter of demand will be $500 to $1500.

Can you reconstruct the financials using bank statements?

Meanwhile, I would ask a board majority to resolve that the former officer no longer be included in board communications or be invited to speak at board meetings unless the former officer turns over the records without conditions within 48 hours. Is such a board action legal? Possibly. The fact is the board would have to impose a special assessment to pay for an attorney and would have to pay even more to take this person to court. The HOA really cannot afford this. I would force the offending former officer to be the one who takes this to court.

DouglasK1 (Florida)
Posts: 2,046

Posted:

There's always public shaming. We have a prior director, president, and ARC chair holding records with some much more ridiculous demands (including rescinding some ARC applications that have been approved since he left the ARC). In one of our recent newsletter, we let the community know that we were out of compliance with state HOA record keeping laws because of this person not turning over records (naming him).

Escaped former treasurer and director of a self managed association.

AugustinD
Posts: 5,144

Posted:

Also --

Colorado has a records inspection statute for nonprofit corporations. If your HOA is a nonprofit corporation, then this former officer's withholding of these records precludes the HOA from sharing records that members request. See http://codes.findlaw.com/co/title-7-corporations-and-associations/co-rev-st-sect-7-136-102.html . This former officer is seriously, explicitly breaching his or her fiduciary duty. You should tell him or her this. Then I would cease to acknowledge this former officer's existence as a board member and person.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By AugustinD on 09/12/2017 7:05 PM
In my experience, the police would see this as a civil matter and will not involve themselves. YES ... hit this nail squarely on the head. This is a Civil contract matter.

You say your HOA's annual expenses are only about $250. I figure the cost of an attorney writing a letter of demand will be $500 to $1500. Potentially much less than the $500 if to simply demand HOA records.

Can you reconstruct the financials using bank statements?

Meanwhile, I would ask a board majority to resolve that the former officer no longer be included in board communications or be invited to speak at board meetings unless the former officer turns over the records without conditions within 48 hours. Is such a board action legal? NO ... All Board members have equal rights to attend, speak, records access, etc. as every other Board member. They are elected by the Membership and only the Membership can recall or choose not to again elect the individual. The only exception would be if a Board member was in a Lawsuit against the HOA. The HOA could then exclude information pertaining the any such lawsuit.Possibly. The fact is the board would have to impose a special assessment to pay for an attorney and would have to pay even more to take this person to court. The HOA really cannot afford this. I would force the offending former officer to be the one who takes this to court. Unfortunately Augustin ... the individual will simply sit on the records ... why should they file a lawsuit? The HOA's best initial action is to have an attorney write a demand letter. Potentially if they need a special assessment and the owner's ask why ... I would be honest and tell them why. YEP ... bet they will not again elect that particular director in the future. However, I am getting the feeling that there is some type of underhanded battle going on between BOD members in this HOA. On another post Indie and other BOD members are potentially denying a board member (which might be this individual) information which they themselves have seen regarding an issue ... yet have denied another BOD member the same access. Which in CO is a violation!!!

IndieS (Colorado)
Posts: 79

Posted:

Thanks for the input.

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