Censure

Can the majority of Board members decide to censure a Board member to keep them from sharing information to Homeowners? This Board member has done nothing wrong and has not shared any executive session information. They only discuss open information but the majority of the Board frown on this behavior and told this Board member they were going to work together to censure them if they didn’t stop talking to the homeowners because they don’t really think homeowners should be involved because they don’t know anything. If the majority of the Board work together (they are all neighbors and close friends who each have been on the Board for many years) what recourse does the targeted Board member have? How do they respond to being censured when they have done nothing wrong but the majority of the Board creatively coordinated this action to silence them or get them off the Board? I’m in Monterey California and I’m a new Board member.

So the majority of the Board can censure to prevent a Board member from talking to homeowner with no due cause in Monterey Ca? Sounds absolutely ridiculous to me. I’d assume then civil action would be needed to stop this corrupt Board unless there’s any other agency to report to to investigate such nonsense.

Not saying it's right. Recalls take too long and can get stalled. Best chance is gain the majority through the normal election process. Get a good slate of candidates.

Unfortunately it can happen. The majority rules on an HOA board, and this can be good or bad - it's bad if the majority are power-hungry fools who don't know their jobs. Yeah, they can censure someone improperly - if they're already behaving badly, this would be just more evidence of same.

I will make one comment, though. Individual board members should not be talking one-on-one with homeowners about association business. A single board member does not speak for the board, and it is outside of official channels. This is a very good way for misinformation to be communicated to the membership, which makes an already tough job even harder.

So while I don't think the talkative board member should be censured - that should be reserved for things like revealing confidential info - that person should be told to knock it off and, if possible, removed from their officer position. Board members have a duty of loyalty: they should be effective team players, not Lone Rangers. If I were on the board, I would suggest giving Mr./Ms. Blabbermouth the newsletter-writing and website maintenance jobs (if I though they could be trusted with them). Both jobs are time-consuming, so hopefully the person won't have time to be the neighborhood gossip.

How I felt about the above would probably depend on the exact circumstances. For now, I do not agree with such a blanket assertion. HOA Boards serve both a corporation but also, in a quasi-governmental capacity. Ordering Directors to never speak their opinions on non-confidential topics outside of board meetings would be like ordering City Councilors to never comment to members of the public on their positions on non-confidential topics. Board majorities can and have abused their power. To me, a blanket prohibition on directors expressing their feelings on controversial, non-confidential topics is a sign of a board that is likely behaving dishonestly and possibly, corruptly.

"Fiduciary duty" generally means to serve the best interests of the corporation. I think silence when a board majority is, say, breaking the law, and with great financial impact or risking the safety of HOA members, is not serving the best interests of the corporation.

Toss in that campaign season sometimes requires that directors differentiate themselves as needed to win election so they may address, say, improprieties.

California has laws about the use of HOA resources to effectively campaign. The HOA/condo must give the dissident (minority) board member equal access to HOA resources on controversial topics. Whether the HOA board will agree to do this could be the stuff of a valid legal battle. The dissident board member(s) would start with Internal Dispute Resolution. See https://www.davis-stirling.com/HOME/Election-Campaigning, especially the link to "equal access."

If you are the director being attacked by a board majority, and since you are new, I think this is a difficult start to your board service, to say the least. But I have seen new directors insist on their right to records and their right to speak to HOA members outside the board meeting. The fights were ugly, but over a few years, it helped improve the board in general.

Thank you so much MarkW, MarkM and Augustin for the great information. Yes it is I and another Board member though he has been in for 10 years and has been the minority with the greatest intentions. Now that I’m on, I have questioned several actions by the majority board such as: One of the majority board member sharing executive session to other homeowners and I know because the homeowner was telling me this happened however they did not this was executive session information. Also, working with the property manager to ignore the violations reported of her friends but enforce those reported of her non-friends. Asking the property manager to keep HOA information from me and this other minority Board member. Requesting “Board members only” meetings to discuss important HOA information such as making the decision to change a major vendor without letting the homeowners know about this change or meeting. Now they are emailing saying if I continue talking to homeowners that they will censure me. I or the other minority Board member never share executive session information. We never speak as the Board only as individual Board members and as HOA members about the things that we disagree with. We want to motivate homeowners to get involved because for many years they haven’t been involved and perhaps this is how these majority Board members have all this control, and I think they do what’s best for them and not thinking of the entire association in some of their decisions.

I'm going to play devil's advocate here and summarize what our attorney told us about individual board members responding to individual homeowner questions outside of normal channels:

* No matter how many times the board member includes a disclaimer that they don't speak for the board and this is their personal opinion only, the homeowner will hear it as "the board says...".

* The homeowner will likely pass this on to other homeowners in some garbled, incomplete, and out of context fashion. As with the old game of Telephone, you end up with bad information being passed around the community. This may be merely a nuisance - or it can cause serious issues in the hands of your professional complainers who are looking for ways to undermine whatever the board does, good or bad.

* Talking to individual homeowners one-on-one can give the appearance of favoritism, and boards should avoid that.

* It can also foster a climate of secrecy. There is a good reason that official association business is conducted in writing and in open session.

* Yes, board members don't stop being homeowners and having all of the same concerns that non-board members do. On the other hand, they don't ever stop being board members in the eyes of non-board members, either, and ignoring this doesn't make it go away.

I'd said earlier that I didn't think censuring was appropriate in this case, and I re-iterate that any board member who is hot to trot on communications should take on the newsletter and web site jobs. They'll get to communicate until they're well and truly sick of it.

I think that's true, but that's the homeowner's problem. There's no "apparent authority" an owner may rely on when the CC&Rs or Bylaws specifically state that individual board members have to inherent authority on their own and that only the board as a whole makes decisions.

An outside party such as a vendor or contractor may rely on the word of an Officer or Director due to his or her apparent authority. The outside vendor has no duty to research the association's governing documents to determine whether the President, for instance, has the authority to bind the association to a contract.

It's different for owners who are on notice that the association is governed by its governing documents. If a homeowner is (or chooses) to be ignorant about that, then that's his or her problem. If the president, for example, tells an owner to go ahead and pour that 20x50 ft concrete patio next to their house and the governing documents do not give the president the authority to approve that on his own, then the homeowner doesn't get off the hook afterwards by saying, "the president told me I could do it".

I tend to agree with the advice Cathy's HOA attorney's received. Directors should all have their eyes fixed on what's in the best interests of their community. Complaining to various individual owners about the board's alleged poor judgement, or worse, does not benefit the larger community at all.

We've gone over one of Sasha's complaints above --that the board will be in executive session to discuss changing management companies: "Requesting 'Board members only' meetings to discuss important HOA information such as making the decision to change a major vendor without letting the homeowners know about this change or meeting."

There are many reasons why this topic should be in executive session. I advised Sasha to go to davis-stirling.com, Index, Executive Session, what Sasha calls "Board members only" meetings, but s/he seems to reject reading & learning about HOA topics. Now, these executive sessions must be noticed 2 days in advance with general topics listed, in this case, Personnel Matter.

Sasha is outnumbered on the board and, so far as I can tell, is being ignored. Gossiping and griping to owners about the Board's alleged bad behavior not only is not good for the community, it harms Sasha's chance to make any difference whatsoever in the HOA.

(ps I'm curious about what "HOA information" the PM won't give to her/him. will you tell us, Sasha?

You know common sense does apply to this topic. To say that a Board member should never discuss anything is foolish. I'll give you my example. Our HOA reserve account was never funded properly and as a result our clubhouse, roads, etc were in poor shape. The last reserve study was done 10 years ago and shoved in a draw and ignored. The first year I was on the Board the majority didn't vote to get a current study done for fear of raising the regime fees and pissing residents off.

I was constantly asked why everything was in a state of disrepair. I diplomatically explained what a reserve study was and stated that this Board and previous ones made the decision not to use a reserve study to find out what the appropriate regime fee should be. I was always asked why other Board members voted no and I always told them to come to our monthly meeting and ask this question during the open Q&A section. I didn't throw anyone under the bus but I made it clear I disagreed with the overall vote and I explained why. I don't regret it and would do it again in a heartbeat.

I really wasn't! We are a condo association though.

It's cool. Plus I learned a new vocabulary phrase. Even if I do chuckle every time I hear it.

Congress people speak openly about topics that come before their committees, UNLESS it was discussed in secret or a closed meeting. I served on a Neighborhood Council for the City of Los Angeles and there was NEVER an issue if we spoke to neighbors outside of a meeting.

Let's say the member was at a board meeting and saw you voted no on a proposal, that eventually passed. There is no harm in asking why they thought they were correct in voting no. Working against a majority vote of a board decision is a completely different story. Afterall, World War III is not getting started because one board member spoke with their neighbor.

A lot of he said-she said.

Ah, the PM isn't giving you copies of contract for your review. All owners may have these. I'd ask the PM again in writing--cite the place in your own documents that state you may have these OR cite the statute that you can find at Davis-stirling.com, Index, Records, and copy the PM's boss.

As I understand censure, it's a formal vote voicing the board's disapproval with no penalty. If that is also the case in California, I would proudly let all the owners know that you were censured and why, pointing out you did nothing wrong. That turns the tables and makes the board look bad.

Oops my mistake. This is another topic. Will start a new thread. Don’t see an option to delete this last post.

Well said.

Slander?

Agreed re the "loathsome disease"; defamation per se; and the requirement for damages being automatically met in such instances.I realize people often write quickly here. I realize directors are often disgusted with being attacked as board members. But the statement above seems to me to be its own flirtation with oppression of important free speech rights as follows.

When the person accused of ethical violations is a well-known figure (a.k.a. 'quasi-public official' in the case of HOA directors and managers), then the bar for proving defamation is high. The accusations may be untrue, but the person making the accusations has to have had "actual malice." When free of actual malice, the person making the accusations against a well-known figure has qualified privilege to make erroneous statements about public or quasi-public officials. In other words, suppose a homeowners association (or director's) sues a HOA member for accusing a board of, say, violating its fiduciary duty on account of doing _____. The facts are that the HOA member made an unwitting mistake (like the real-life example CathyA3 gave). As a result, the homeowners association will lose the lawsuit. Plus I see the judge rolling her or his eyes at the HOA attorney for bringing the suit.

Public or quasi-public officials have a notoriously poor track record when it comes to winning defamation suits, for good reason. Why do public figures, including HOA board members and HOA managers, get less protection when falsehoods are told about them (with said falsehoods pertaining to their acts in overseeing and operating the HOA)? As I bet many here at hoatalk know, the standard derives from the 1964, unanimous (9-0) Supreme Court decision in Sullivan v. New York Times. Justice Brennan wrote of "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."Being a HOA Director means serving as a volunteer. Rewards of any kind are absent. Plus one is under fire constantly, and yes, often by members ignorant of law who speak falsehoods. But the board has abundant resources (HOA members' money; the manager who serves at their command) to get out the truth via newsletters, mass emails, publication of minutes, and open board meetings. The board also has any pit-bull attorney it wants at its command. Members have none of these.... and if the HOA ultimately sued the owner making false statements (without malice), your HOA could get hit with a SLAPP-type suit. The acronym "SLAPP" refers to "strategic lawsuit against public participation." More likely the owner would simply exercise the defense of "qualified privilege" and see if she or he could get his or her attorneys' fees paid per statute.

I wonder whether the reason CathyA3 and I are approaching this from different ends of the spectrum is a comment on the income levels of our respective HOAs/condos. Two of my three HOAs/condos were middle-middle class, with not a lot of refined (so to speak) education. The directors were often no more enlightened on the covenants than the members.

Judging by the price of our homes, we're middle-middle class. The immediate area is very mixed, with remnants of the rural area that it was not too long ago mixed with high end McMansions and even pricier neighborhoods. The area also attracts corporations. As a result, our residents tend to be professionals and retirees from the corporations, ethnically mixed. The large majority have college degrees (several degrees for some of us). Financially we have those who are living paycheck to paycheck as well as millionaires, although you can't tell which is which by appearance.

One thing that could account for differences is that this is a condo community, and condo buyers often consider their homes to be temporary glorified apartments. I suspect that as a group they are less invested in their communities than the typical single family home HOA resident. The ignorance is a deliberate choice, in other words, and not a reflection of economic or educational background. I've also heard some horror stories out of some of the high priced HOA communities, though, so money is no guarantee of good behavior.