Rogue Board Member

Started by NpB • 28 replies • 1057 views

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NpB (Arizona)
Posts: 605

Posted:

How should the Board majority respond to a rogue Board member if that person were to send an email to the entire community ALLEGING (not proven) that a Board is not abiding by city/county/or state regulations? The management company does not mediate disputes between Board members and I think it may be inappropriate for them to come to the defense or support of one party. Would it them be up to the Board majority to write a reply email to all members defending their actions? If a rogue Board member tried to undermine an action taken at a meeting or started an email "war", how would you respond?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I wouldn't. Let them send out an email. It will make the people come to the meetings to see for themselves. Then you can answer questions. The MC has nothing to do with how the Board handles it's matters. They are a hired contractor to the HOA they are NOT members.

Former HOA President

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Hmmm ...

Was it written AS a board member or AS a member of the community?

Was it accurate?

Did it malign, impugn or slander anyone?

Is the Board aligned enough to, depending on your bylaws, call for a special meeting to remove him, or collect enough votes in the community to force a DOD ual meeting, to remove?

KerryL1 (California)
Posts: 14,550

Posted:

I think a board should have a discussion with that director in executive session to see if the director is misinformed about the alleged violation of regulation or a regulation. The board should have correct facts about the allegation. Please give us an example of what sort of regulation is allegedly violated.

If the board cannot persuade the "rogue" that s/he is wrong, the board might should vote to ask for the director's resignation and place it in the minutes. I think you might invite a rep of the agenda whose rules the board allegedly violated to explain at an open meeting what the truth is.

If the rogue is correct, the Board should fix its mistake with the agency in question.

How did the rogue get all Owners' email addresses?

Your 2nd question seems different in that it's about a director disagreeing with a board decision and trying to undermine it. What does "undermine" entail? Again, please give an example.

Or .... are both "hypotheticals, NpB?"

NpB (Arizona)
Posts: 605

Posted:

Quote:

Posted By KerryL1 on 03/21/2020 4:35 PM
I think a board should have a discussion with that director in executive session to see if the director is misinformed about the alleged violation of regulation or a regulation. The board should have correct facts about the allegation. Please give us an example of what sort of regulation is allegedly violated.

If the board cannot persuade the "rogue" that s/he is wrong, the board might should vote to ask for the director's resignation and place it in the minutes. I think you might invite a rep of the agenda whose rules the board allegedly violated to explain at an open meeting what the truth is.

If the rogue is correct, the Board should fix its mistake with the agency in question.

How did the rogue get all Owners' email addresses?

Your 2nd question seems different in that it's about a director disagreeing with a board decision and trying to undermine it. What does "undermine" entail? Again, please give an example.

Or .... are both "hypotheticals, NpB?"

Hypotheticals, but could be realistic. It's wise to be prepared.

NpB (Arizona)
Posts: 605

Posted:

Two possibilities:

1) Rogue board member might send email to entire community claiming trees have not been properly trimmed in the past by a particular vendor (undermining that vendor who has had a business relationship with HOA for 17 years) and that trees should be trimmed in a certain month of the year, despite agri-science professors stating otherwise.

2) Rogue board might send email to entire community claiming the Board is neglecting taking care of a vacant parcel. Board has a signed, recorded document from city indicating area is natural area open space and cannot be maintained by HOA. If Board responds with this signed, recorded document, an email "war" could ensue.

The Board has all owners email addresses, because emails blasts are sent out to owners about pool heating, etc..

BenA2 (Texas)
Posts: 1,273

Posted:

I think every board member has a right to communicate with the members and I would not try to interfere. If their allegations are false or misleading, I would respond with factual information, with a majority of the board approving. It should be brief and does not need to be a back and forth. Just let the members know that the board majority disagree with the assessment of one member and invite them to check for themselves, since presumably everything is transparent.

KerryL1 (California)
Posts: 14,550

Posted:

I often agree with Ben, but I disagree that every director has the right to communicate individually with the membership. Only the Board as a whole should, or the president if the board so assigns him or her that task. One the board makes a decision, those who oppose should be silent or resign. A rogue, in this sense, is not acting as a fiduciary on behalf of the best interests of the community. S/he shouldn'be on the board.

But I agree that in the hypothetical cases NpB presents, that Ben's advice is sound. These are simple matters and could be responded to very simply, clearly & briefly. No need for a "war."

Does AZ give directors the right to have every owners email address? What is one or more owners don't want every director to have their email address? Normally, it'd be the PM's job to email members about the pool, etc. or, if self managed, one director, say the secretary.

AugustinD
Posts: 5,144

Posted:

On the one hand, every HOA board is the board of a private corporation. Generally I do not think dissenting directors (of a private corporate board) are heard from. At best, perhaps the ones who dissent and feel strongly about their position are the ones who seek whistle blower protection. On the other hand, by my reading, the courts in certain situations have deemed HOAs to be "quasi-governmental." Elected government officials, like City Councilors, state and federal legislators, and others all practice the right to speak directly to their constituents, perhaps especially when they disagree with the majority of their respective governing bodies. I think HOA services are far more like governmental services. I tend to think a HOA director should be able to speak out to his or her "constituents." Particularly when a situation is dire. Like the reserve fund is ridiculously low (by any professional's measure) but a board majority does not want to increase assessments and lose their power grip on running the (rapidly deteriorating) HOA.

I like BenA2's response. Unfortunately I think it is rare that HOA boards do as he advises.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

NpB,

Perhaps I’m slow, again ... are you saying you made up thus scenario?

KerryL1 (California)
Posts: 14,550

Posted:

Staying home must be getting to me, but I disagree with Augie too. The place to debate and disagree is at a board meeting. In CA and in our HOA a fair number of owners do attend & hear the debate. Dissenting directors also will show their disagreement in the minutes with their no vote to the ridiculously low contribution to reserves. The dissenting director might even have made a motion for a higher contribution, which also will be on record. A director also, at a subsequent meeting can make a motion to rescind a decision perviously made. Even if that fails, this director's motion is in the minutes for all owners to read.. Here's what Adrian Adams of a CA HOA law firm has to say. See Davis-stirling.com in reply to a Q. from a director:

QUESTION: Does the “duty of loyalty” mean I have to support, in public, a position reached by a majority of the board? Am I precluded from publicly dissenting and making adverse comments?

"ANSWER: You can dissent and make adverse comments in a board meeting when the matter is under discussion by the board. But once a decision is made, it's time to move on. You don't have to become a cheerleader for the board's decision but a director goes too far when he undermines the board or the agreed-upon course of action. Such behavior can result in a breach of the director's fiduciary duties.

Business Judgment Rule. When a homeowner is elected to the board, he/she automatically becomes a fiduciary and must follow the business judgment rule. That means the actions of a director must be in good faith, in the best interests of the association, and with prudent care. (Corp. Code §7231(a).) Stating you voted against the motion but support the board's decision is okay. Disrupting operations, attacking fellow directors and undermining an agreed-upon course of action is harmful to the association and falls outside the Business Judgment Rule. When that happens, disruptive directors face personal liability.

Dealing with Rogues. If a director goes rogue, the board may have no choice but to censure him and, when appropriate, form an executive committee to exclude the director from sensitive issues. Any director who believes he must win all votes is not suited to be on the board. If needed, the board can call a membership meeting to recall the director."

Btw, I, personally, am done with NpB's hypothetical questions.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By KerryL1 on 03/21/2020 7:14 PM
The place to debate and disagree is at a board meeting. In CA and in our HOA a fair number of owners do attend & hear the debate. Dissenting directors also will show their disagreement in the minutes with their no vote to the ridiculously low contribution to reserves. The dissenting director might even have made a motion for a higher contribution, which also will be on record. A director also, at a subsequent meeting can make a motion to rescind a decision perviously made. Even if that fails, this director's motion is in the minutes for all owners to read..

All true. I guess I had in mind those boards that make particular decisions behind closed doors when these particular decisions should, under the law, be done in open meetings. Worse, if a board majority is misbehaving thusly, I think it's just about guaranteed said majority will not behave either as BenA2 describes or in any other kind of civil fashion.

Even if a board were behaving and doing as KerryL1 described, and a director mass emailed folks on her or his own, perhaps seeking more support at the next meeting on a particular issue, I am not sure I see a violation of fiduciary duty. Though I might judge the mass emailing bad manners. It depends. If the situation were troublesome enough, then rather than seek a resignation, I might propose a recall vote of the director.

I figure this is more than a hypothetical.

NpB (Arizona)
Posts: 605

Posted:

Quote:

Posted By GeorgeS21 on 03/21/2020 6:47 PM
NpB,

Perhaps I’m slow, again ... are you saying you made up thus scenario?

This is a hypothetical situation. It has not occurred. I think it's good to be prepared for situations as Board members. We can all learn from each other by sharing opinions and life experiences.

MarkW18
Posts: 1,290

Posted:

There are more important things in life right now, like trying to find some damn toilet paper.

JohnT38 (South Carolina)
Posts: 1,631

Posted:

Quote:

Posted By MarkW18 on 03/21/2020 9:08 PM
There are more important things in life right now, like trying to find some damn toilet paper.

Mark, if I overnight you ten rolls of toilet paper would you pay me $40 per roll? Hypothetically speaking of course.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By JohnT38 on 03/22/2020 3:30 AM

Posted By MarkW18 on 03/21/2020 9:08 PM
There are more important things in life right now, like trying to find some damn toilet paper.

Mark, if I overnight you ten rolls of toilet paper would you pay me $40 per roll? Hypothetically speaking of course.

Pay me $39 per roll and I'll throw in a complementary bottle of Purell. /grin

GeorgeS21 (Florida)
Posts: 3,808

Posted:

NpB,

Sheesh.

Please note at the beginning of your posts - something like "NOT REAL" - at least this will allow me the choice to move on to other topics without reading and responding.

NpB (Arizona)
Posts: 605

Posted:

Quote:

Posted By GeorgeS21 on 03/22/2020 4:53 AM
NpB,

Sheesh.

Please note at the beginning of your posts - something like "NOT REAL" - at least this will allow me the choice to move on to other topics without reading and responding.

Great! Others have already provided excellent comments.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

I dunno ... thus is a pretty weird thing, NpB.

SueW6 (Michigan)
Posts: 814

Posted:

Nbp often poses hypothetical questions, or rhetorical ones.

Writing a book?

BTW - there is no such thing as one rogue person speaking for the board, especially producing a mass letter.

If that person wants to write a personally paid-for letter, then so be it.

Unless there was a motion to send a letter to all members, this was out of line.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By SueW6 on 03/22/2020 12:44 PM
Unless there was a motion to send a letter to all members, this was out of line.

If the alleged violation of a safety regulation jeopardized life or property, and the director tried to talk his or her fellow directors into doing the right thing and these directors refused, then it would be out of line not to inform the membership.

KerryL1 (California)
Posts: 14,550

Posted:

Assuming the (now-rogue) Board made some sort of policy that threatens the safety of residents or of the property, I'd think attendees would have put up a fuss in open forum. The dissenting director would have gone on record as opposed. The latter is crucial because if a Board purposely violates local codes about health & safety, I don't then the BJR protects them. The dissenting director though might be safe from liability.

If, instead of a rogue director, we have a rogue board that made such a decision in executive session, I think I would consult with the relevant local agency to make sure the board created such a hazard. If the board did, one hopes the agency would issue citations, etc., to remedy the problem. I still don't think the director should email all Owners about this danger.

It seems to me that such an email could really alarm residents, which would not be in the best interests of the corporation. Mass panic could ensue. I think there are alternative ways this hypothetical director can handle such a dangerous situation.

But the truth also is the lone director, "rogue" or actually absolutely correct, can get little done on her/his own in any case. When a board is totally foolhardy, reckless, ignorant, arrogant, Owners will notice and this lone director might at a very micro level might encourage attendance at meetings to protest the board's imbecilic actions. Then, the next election can be the time for big changes.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

I have allegedly read and care.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By KerryL1 on 03/22/2020 6:22 PM
When a board is totally foolhardy, reckless, ignorant, arrogant, Owners will notice [...]

From my own experience; the general rule of owner apathy (especially where the rental rate is high); and reports here, I would not bet on this happening every time. Owners might notice once some catastrophe befalls the HOA, when it is too late.

NpB (Arizona)
Posts: 605

Posted:

Do you think a management company should intervene in ideological disputes between Board members?

NpB (Arizona)
Posts: 605

Posted:

Quote:

Posted By NpB on 03/23/2020 1:12 AM
Do you think a management company should intervene in ideological disputes between Board members?

If a management company represents the Board (I assume Board majority), why shouldn't they help craft a response to any allegation or email from a disgruntled Board member?

If you as a homeowner received a email from a disgruntled Board member, would you immediately think it is poor form of the Board member or would you eagerly await a Board majority response?

AugustinD
Posts: 5,144

Posted:

My take: If the board wants the manager to write a response, fine. But I do not support the manager doing this without first getting the board's permission. Regarding my opinion of the disgruntled director who mass emails or snail mails all owners, at her or his own expense and using only resources to which an ordinary HOA owner is entitled: If the Minutes already properly record the disgruntled director's position, and the director sent a mass email or snail mail repeating the same, I would likely be annoyed. Whether this would affect my vote for the director in the future would depend on the issue. It had better be an issue with the potential to jeopardize the safety of people or property.

I think I see what KerryL1 is getting at. My take:

-- If the open meeting Minutes record the difference of opinion of directors, excellent.

-- If a director wants to undertake on her or his own a mass emailing (or snail mailing), and if the sharing of HOA owner email addresses is allowed under state law, then she or he cannot use the HOA's mass email service. And the HOA manager had better not be expending HOA resources or her or his labor to help the one director. Instead, the disgruntled director has to put on her or his owner's hat. Then the director must formally request the contact information of owners and go through the (often considerable) labor of emailing or snail mailing each owner individually. He or she can sign that she is a director. He or she should make it clear that she does not speak for the board.

-- If the director spreads lies, then I call this a violation of fiduciary duty. I grant that the sea-lawyer and Trump-inclined directors among us will have no problem calling a lie the truth.

-- The director should recognize that generally, the more mailings an owner gets from the association and a single director, the more likely these mailings will be ignored. Mailings being ignored by many owners, because there are too many, could be said to be disruptive to operations.

-- I think that sometimes one flavor or another of mass panic is appropriate. With a board majority that is not transparent, violating its own fiduciary duties, and where something awful (risking people's safety or property) is substantively being risked, reaction by owners should be strong. It depends.

-- My exact position would be circumstance dependent.

-- I am not currently doing the hard labor of serving on a board. If an owner is critical of a board's steps and is not willing to run for the board with a like-minded majority, then I would (and have argued at times) that such an owner either needs to cool their jets and defer to the board or take the proper legal steps to remedy the situation.

NpB (Arizona)
Posts: 605

Posted:

Quote:

Posted By AugustinD on 03/23/2020 6:05 AM
My take: If the board wants the manager to write a response, fine. But I do not support the manager doing this without first getting the board's permission. Regarding my opinion of the disgruntled director who mass emails or snail mails all owners, at her or his own expense and using only resources to which an ordinary HOA owner is entitled: If the Minutes already properly record the disgruntled director's position, and the director sent a mass email or snail mail repeating the same, I would likely be annoyed. Whether this would affect my vote for the director in the future would depend on the issue. It had better be an issue with the potential to jeopardize the safety of people or property.

I think I see what KerryL1 is getting at. My take:

-- If the open meeting Minutes record the difference of opinion of directors, excellent.

-- If a director wants to undertake on her or his own a mass emailing (or snail mailing), and if the sharing of HOA owner email addresses is allowed under state law, then she or he cannot use the HOA's mass email service. And the HOA manager had better not be expending HOA resources or her or his labor to help the one director. Instead, the disgruntled director has to put on her or his owner's hat. Then the director must formally request the contact information of owners and go through the (often considerable) labor of emailing or snail mailing each owner individually. He or she can sign that she is a director. He or she should make it clear that she does not speak for the board.

-- If the director spreads lies, then I call this a violation of fiduciary duty. I grant that the sea-lawyer and Trump-inclined directors among us will have no problem calling a lie the truth.

-- The director should recognize that generally, the more mailings an owner gets from the association and a single director, the more likely these mailings will be ignored. Mailings being ignored by many owners, because there are too many, could be said to be disruptive to operations.

-- I think that sometimes one flavor or another of mass panic is appropriate. With a board majority that is not transparent, violating its own fiduciary duties, and where something awful (risking people's safety or property) is substantively being risked, reaction by owners should be strong. It depends.

-- My exact position would be circumstance dependent.

-- I am not currently doing the hard labor of serving on a board. If an owner is critical of a board's steps and is not willing to run for the board with a like-minded majority, then I would (and have argued at times) that such an owner either needs to cool their jets and defer to the board or take the proper legal steps to remedy the situation.

Well crafted response. Thank you.

KerryL1 (California)
Posts: 14,550

Posted:

I always like Augie's thinking & insights. I still maintain though, since the hypothetical situation is that the Board made a decision-recorded in meeting minutes- that threatens residents' life, health &/or safety OR the safety/stability of the common areas, the dissenting director's first move is to contact the local agent in charge of such matters. That action, imo, also is required if the directors is to fulfill their duty of loyalty to the HOA. That mandatory action would preclude an email/ letter to all residents -all owners, too, I assume. (25% of our residents are renters.) The agency would follow up with the PM & board, etc. to correct the hazard.

I'm still not convinced the director who'd send an email/letter would doing the "right thing." Mass panic would not be in the best interests of the Associaton--we ARE talking life/safety issues. Additionally, s/he would immediately doom any other actions about any other topics s/he wanted to take on the Board and the vote against this director would always be "nay."

Though not a life/safety issue here three arrogant, secretive directors were voted out of office at the last annual election over a certain topic because a small group of owners, including a former director DID use their own labor and funds to send mass mailings--3-4--over about 10 months.

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