Board Member Censure

Does the discussion of reasons for censure, as well as the censure, of a Board member, happen during an open meeting?

Or does the discussion of reasons for censure take place in an executive session, and the censure motion and vote happen in the open meeting?

This Board member, along with other previous members, got involved with our insurance company in an attempt to squelch a claim, and the insurance company stopped processing the claim "at the request of the Board". Our attorney has explained that we need the insurance company to process the claim to avoid legal entanglements down the road.

We know that a censure has as much weight as a "Cease and Desist" letter, but it could be a prelude to asking for a recall election if the behavior continues.

I'm still new to this, and still seeking an answer to the question I posed.

Thanks,

Thank you Richard. Excellent advice, and common sense as well!

Thanks Ben. Colorado law indicates the following scenarios that require executive sessions:

§308(4) of CCIOA limits executive sessions to:
a) Matters pertaining to employees of the association or the managing agent's contract or involving the employment, promotion, discipline, or dismissal of an officer, agent, or employee of the association;
b) Consultation with legal counsel concerning disputes that are the subject of pending or imminent court proceedings or matters that are privileged or confidential between attorney and client;
c) Investigative proceedings concerning possible or actual criminal misconduct;
d) Matters subject to specific constitutional, statutory, or judicially imposed requirements protecting particular proceedings or matters from public disclosure;
e) Any matter the disclosure of which would constitute an unwarranted invasion of individual privacy;
f) Review of or discussion relating to any written or oral communication from legal counsel.

It sounds like Indie's HOA's legal counsel has become involved, so I think 308(4)F applies.

As stated in a different post, your board was advised (still don't know by whom) to act "ASAP" to deal with the rogue director. So the main thing is to get on the record that the Board disapproves or censure this director for his conduct re: x, y, z. Get this censure or disapproval in the minutes to show anyone in the future your board attempted to discipline this director. It shows you all did not ignore his misconduct.

You could go further and ask him via your vote for his resignation, which also would go in the minutes as evidence of your board's attempts to deal with him. In CA, Ex. Sess would clearly be fine because this is "potential" litigation. Invite the rogue director to meet about the censure in an open meeting if he wishes.

Open meeting might be the best idea, but I don't know if it's required.

So the rogue director chose NOT to attend an emergency meeting and was censured for involvement in the issue.

Do the draft minutes go to the censured director for approval before they are released to the HOA?

Did you censure him in Ex. Sess. or an open meeting?

Either way, HOA members don't have access to the minutes until they've been approved by the Board at a subsequent meeting. (In CA: or the draft minutes within 30 days of said meeting, which ever comes first.)

I recall reading this article about a censure action proposed in California.

I could be wrong (and have been wrong more times than I care to admit), but it does seem that, if the rogue director clearly acted outside the Board, interfered with the Board's duties and responsibilities, and breached his fiduciary duties towards the HOA, that a censure would be appropriate.

I did read the article Augustin posted too. It refers to CA and it does discuss POSSIBLE implications in CA. Since "censure" technically is drawn from Robert's Rules of Order, and some states, e.g., CT require HOA board to use Robert's the CA news item may not apply to them. More, some HOAs require that boards use Robert''s.

Let me recap your situation, Indie. Is the is how it went? Your/your board was advised (by whom?) to deal with this rogue director ASAP.

To that end, i.e., to protect your Association, your Board a called an open Emergency Meeting and the majority of directors present voted to censure the rogue director.

My understanding is that your Board is showing that it disapproves of the action of the rogue director.

Now, though, I'm puzzled about your quote, Indie: "Our Board approves the minutes prior to distribution to the HOA?" Are you saying that someone writes the minutes of your board meetings, but those minutes are never approved BY the Board at the subsequent meeting?

yes -- the board approves the minutes at the time they are written -- you'd never know it from recent events, but the board often goes 12 months without holding a meeting, and then, holds one just before the annual meeting. So the directors, over the years, decided that, since they were in the best position to know whether the minutes were accurate, they should approve them when they were written, rather than wait a year when no one recalled what was actually said or done and by whom.

There is a basic fundamental process for minutes. Someone--usually the board sec'y or a the property mgr.-- writes them as the meeting progresses. They then are typed and distributed to the board. The Board then votes to approve them and the Board president and secretary sign them.

(By the way, only what was done--in the form of motions-- should be in the minutes, not what was "said."

But you're saying someone writes them at the meeting and they are passed around at that meeting and the board votes to approve or amend them on the spot? And then the president and secretary sign them? On the spot? If that's how you do it and the rogue was absent, he does not vote on accepting the minutes.

But your Board only meets once a year??? What size is your HOA?? How often do your bylaws say the board should meet? This is sounding stranger & stranger. Does your board conduct business by phone or email, which may be against CO statutes? Put another way, how does your board get anything done at all without meetings, motions, votes, etc.?

Maybe that's why so few others on this site are replying?

18 member very rural hoa, with very few duties and tendency to allow the secretary/treasurer to do everything

meetings are conducted, secretary takes notes, secretary produces minutes which are electronically shared with those who have computers and shared via paper with those without computers, then board members call or email for the next day or so, indicating minutes are approved or something isn't right, and minutes are subsequently distributed to homeowners after a quorum of directors approve minutes

board generally meets in January and annual meeting is shortly thereafter, usually early February

often times, board that met in January quits and new members are coerced into serving before next meeting is held during the following January. sometimes new members are new to community, were not present during the previous January/February meeting, and have no knowledge of what occurred at previous board meeting, other than to read the approved minutes from the previous board

So a quorum of board members was at the meeting, but rogue decides he won't go. Rogue definitely received the invitation, but feels that the emergency meeting was improper (or knew that what was done was wrong). Should he approve the minutes before they are released to the homeowners? Emergency meeting minutes are going to discuss the insurance interference and the censure.

Indie

Several on here are telling you the way things must/should be done in FL and CA, two of the most heavily HOA regulated states in the US.

You need to look closer at how things can be done in CO. As an example, here in unregulated SC the BOD can call any type BOD Meeting we desire to at any time and not notify our owners. Say we call an Executive Session and the rouge member did not turn up, we can simply cancel the meeting and say nothing to our owners about it.

We could deal with your "rogue" BOD Member most any way we desire to. The only thing we would have to do is follow proper procedure to remove him from the BOD. Which basically is how he was elected to the BOD. Elected by the owners, the owners would have to vote to remove him. Appointed by the BOD, the BOD alone can remove him.

Things keep getting more interesting.

Rogue director skipped out on emergency meeting last month and the unfinished business related to his behavior has been added to the next Board meeting, where we will give him a chance to explain why he did what he did. He has indicated he will NOT appear for the next Board meeting, but plans to take the matter to the annual meeting in late January, where he will tell the entire HOA about all of the misdeeds of the current Board and why he felt he had to take the reins.

On the one hand, I thought personnel matters were best handled in an executive session (or at least in a Board meeting), but on the other hand, doesn't he have the same rights as every homeowner to bring matters to the annual meeting for discussion?

Ugh.

Unfortunately, there is a new vacancy, but all other members serve for at least one more year. The rogue is on for one more year.

I'm with Tim. Censure him anyway if he doesn't attend.

If he IS an officer of the board, the rest of you directors vote him out of office.

On the annual meeting agenda, the rest of your Board can vote that Owners may only speak on one topic at a time and only for three minutes apiece.

At the annual meeting, a director might respond. Before then, the Boar might ask the rogue to resign. Have you done that?

Remind the rogue in writing that he may not reveal executive session matters to the membership.

More later....maybe

The rogue refuses to attend board meetings where his case could be discussed by the Board and himself. In addition, one of his, um, errors was to reveal executive session matters to non directors and someone else.

Some of this history, Augie, is in a different thread, I think.

My board has the idea that as long as the Association attorney is present, anything cna be discussed in Executive. I have argued that this is not true, since that would bascially nullfy the "authorized topics" restriction as long as they were willing the pay the attorney to sit in (or even to be on the phone).

Can you elaborate on what the board can talk to the attorney about in Executive Session?

I thought it was limited to matters relating to CA CC 4935 (I am in CA) but one of them keeps saying that ALL conversations with the attorney MUST take place in Executive "so it will be covered under attorney-client priviledge" but I kinda think they don't know what they are talking about.

Anyone?
Please help... these people are seriously driving me insane...