HOA Exec Mgr interference in Board Directors election

I am sure the three board members that benefited never knew a thing.

Tricky one, as the EM is a resident/owner. Does an EM, who is also an owner, lose his rights as an owner to express his opinion an the candidates? I say no.

Disagree with George and John.

Perception is everything.

If I lived in that community, and I knew that A was the EM, it wouldn't matter to me what materials A used. I would think that A was acting in an official capacity unless he clearly stated that he was speaking for himself only and not as the EM. And even then, I might miss it, especially if the communication was similar to ones I usually get from the Association.

When A became EM, he became a fiduciary, and in doing so, he forfeited the right to take any action that would attempt to influence the outcome of the election without full prior disclosure.

In the OP's shoes, I would attempt to delay the vote until the situation is better understood.

I agree with JohnC46 and GeorgeS21.

But even if this member of the HOA made clear that he was writing in his capacity as a member and not manager, and even if this member used his own resources to do the emailing, I would not think much of him.

NpS, tell me what law or CC&R might permit the Board to take away this HOA member's rights to campaign for whomever, using his own resources (not the HOA's), and stating that he is speaking in his capacity as a member.

Any fiduciary duty this HOA staff member has competes with his rights as a HOA member. As I wrote, I would think a person who did this is scum. I would be less inclined to vote for those people he foolishly endorsed. But legally, I think this person does not forfeit his rights to campaign as a HOA member.

I agree with Np. If you are a professional, your fiduciary duties trump your personal rights. This is why judges (and board members) recuse themselves when dealing with an issue where they have a personal stake in the outcome. At the very least the EM should have stated that he was speaking as a homeowner and not as the manager.

As an aside, sometimes a professional actually has fewer rights than the average person simply because of his position. When I worked in the financial services industry, I was not allowed to take part in IPOs (initial public offerings of stock) because it could appear that I was acting on insider info. And I could be fired, fined, and lose my licenses for the mere appearance of wrong doing, even if it turned out that I hadn't actually done anything wrong. Reputation counts for a lot, and a smart professional protects his.

You keep using the term, 'fiduciary obligation.' I know this applies to directors. I know when it does apply to directors, there is law that interprets when a director has violated his or her fiduciary obligation. I am not so sure it applies to a HOA employee or contracted HOA manager. I'd call the situation more of a conflict of interest. Those are not currently regulated very well at many HOAs. But this conflict of interest applies to virtually everything a HOA manager, who is also a HOA member, does. I think it's a bad choice to have a paid HOA manager who is also a member.

Like SueW6 wrote, it's still unknown as to whether the HOA manager said he was writing members with his own member hat on or whether he indicated he was the manager. Also it is not clear whether this member used HOA resources to do the emailing (e.g. mass email capability of HOA software and records).

You and I agree this member/manager is scum. But I also think almost as many members would scrutinize more closely, in a negative way, anyone the EM endorsed. Precisely because the EM's endorsement suggests a tit-for-tat would be in place. Some managers and directors are under-educated enough not to understand this.

Some good points Augustin. Let's dig a little deeper.

Board members are fiduciaries.

In my HOA, we have 3 Officers (homeowners) who are not Board members. Are they fiduciaries too?

Some HOAs have committees. Is the head of one of those committees a fiduciary?

Sone HOAs use a management company. The MC has access to personal data about every homeowner. Does the MC have a fiduciary responsibility to secure that data, or can the MC sell it to some marketing company?

A property manager works for the MC. Does the MC's fiduciary responsibilities pass on to the PM?

The question of whether someone is a fiduciary or not depends on the nature of the particular relationship, not the job title.

You mention conflict of interest. That's not something different. In fact, protecting homeowners from those conflicts of interest is one of the reasons that fiduciary laws apply.

As Cathy said, she risked losing her license and being fined for the appearance of improper action, even if she did nothing wrong. Sure, she was working in a highly regulated industry. But that's not the issue.

The central question is - Was EM in a position to snooker everyone because he withheld information that he should have disclosed in advance?

Personally, I think that most homeowners don't want to get involved and are relieved when someone steps up. That makes them vulnerable to people who would put their own interests above those of the community, and no one would be the wiser. Is that limited to Board members only? I don't think so.

So yes, you are right about conflict of interest. But that's not something different. Conflict of interest and fiduciary responsibility are both part of the same package.