attorney opinions

The Board which I serve on recently passed a rule stating that "no one who incontinent or not toilet trained may use the pool; "diapers and swim diapers are not permitted." One of our Board members, who introduced the motion, provided a written synopsis from our HOA atty stating that the rule would not violate the Fair Housing Act because it banned every age group that was incontinent, not just children. He shared this with the Board and individual pool committee members. The Board member then spoke to this at our Annual Meeting.

I brought up to the Board/pool committee that extensive research of case law and written opinions by various law firms suggested otherwise. The Board President wrote me a stern letter which personally chastised me, then stated that the atty had thoroughly reviewed the rule and it was her opinion that the rule is in full compliance with all Fair Housing Act rules. He asked me to forward the letter to all pool committee members and anyone else that I may have discussed the subject with.

As the board member in charge of the pool committee, I contacted our HOA atty to confirm her opinion. She told me that at NO time had she stated that such a rule was in compliance with all Fair Housing Act Rules and Regulations, that she had consistently cautioned this board member against such a rule, her recommendation has always been to allow children and/or adults to swim so long as anyone not toilet trained or who was incontinent is required to use swim diapers or swim pants, and that this Board member was fully aware of her opinion. She confirmed all of this in writing to the entire Board.

The response from the Board President was to scream at me in the Board meeting (which is closed to residents), tell me that I had no authority to speak to the atty and was never to contact her again without permission from him(we have a retainer which allows any Board member to contact the atty and there is no written policy on contacting the atty), that I was to state unequivocally to the pool committee members that I have no knowledge of any discrimination by any member of the Association, and if I didn't, he would ask for my resignation. I was not a team player.

Help! Since other Board members have been misrepresenting the atty to the pool committee, is it OK for me to share with them what the atty's real written opinion is? And how is the most professional way to do this? I want to be a responsible Board member!

Is this a recapitulation of an older post or a brand new post. I'm having a deja vu experience here?

So the real issue is "Is ok to share the attorney's opinion", or what is the real goal here? There has been lots of previous postings on this issue and I believe that the general consensus is that your Board President is 'Out to Lunch'.

Is there a baby pool along with the main pool?

I CAN see why the attorney would only respond to the Board and not all or some of the members. They are paid by the hour and it's not reasonable to expect that the attorney respond to any member request other than the Board. I take it that the president has shared the letter with the rest of the Board, but the letter itself might be in a gray area in terms of it being confidential. In light of the fact that there may be a remote possibly that there may be other ramifications to their action, I'm not so sure that they (or you) are obligated to report the attorney's opinion to the committee. You know, a better path might be to work with your pool company, local municipalities who have public pools and see what the general trend is.

Curious.. Do you also have a baby pool with the main pool?

SC,

I think that you should indeed share the correct atty opinion with ALL board and pool committee members. I believe that it is your responsibility to share with them the findings of your investigation. It has been posted here many times that the president is not the only board member and it is other directors/officers who let presidents (directors) get away with their own personal agendas.

The president can ask for your resignation all he wants but if you were elected to the board by the association he’s outta luck without having a special meeting to recall you (usually). You also stated that there is a retainer agreement with the attorney that makes her available to all BODs for association business. You did nothing wrong.

As for the pre-conceived notion of being a “team player” (or “united front”) if the entire BOD is united then great however, IMO (and experience) this concept is really designed stop individuality and other directors from ensuring that the entire BOD is operating in accordance with published rules and/or on behalf of the association.

One thing to occur to me lately is that every act of the president is an act on behalf of the entire board and every act of the board is an act on behalf of the entire association. I find it extremely frustrating when the president is running around with out keeping the other board members informed or picking and choosing what they will or won’t share. When things come to a head the other BODs either don’t know/understand the whole situation or don’t even bother to question things.

Keep up the good work!

SC:

As others have said you have a responsibility now to share this information with the rest of the board. After that they can form their own opinion and do with it as they will. The president alone has no authority to force a resignation, and sounds like an insecure little duck with his tactics. The president is not the end all, be all of an association. I am not sure of the landscape of your board, but if other members feel like you do then vote him out of his office and replace, the board can do that.

As for my thoughts on this ban, sounds like a personal vendetta by one board member. I think you are treading on thin ice, as there are many public pools and waterparks that allow children with swim diapers. I was recently at a waterpark that did that and I actually remember seeing the sign.

Guys. The entire Board was present. Here is our policy on Legal Counsel.

Counsel should be reappointed annually at the first meeting of the Board of Directors following the annual meeting of members. (This was not done.) Counsel charges for services at an hourly rate for the actual time spent on a matter. (This is no longer true. We have a retainer that all telephone consults are free.) Counsel should be consulted on all issues relating or closely relating to legal matters including, but not limited to, interpretation of provision of the Covenants, By-Laws, and the Rules and Regulations.

The policy manual has not been updated in ten years.

I guess my questions are:

Since our Association has a retainer with the attorney for all the free telephone consultations we want, can the President ban me from consulting with our atty?

If the Board is promulgating false information to the Committee and the homeowners, isn't it my fiduciary duty to clear up this false information?

Do I need to retain my own atty to protect me personally and the other homeowners from my own Board?

FYI-Our Board meetings are completely closed to homeowners(policy vote at the first meeting) so no homeowners will know that the Board is acting in bad faith unless a Board member tells them. Our attorney STRONGLY suggested at last year's continuing education seminar that our Board meetings be open, but did not say it was illegal. This information has also not been disseminated to the homeowners.

OMG!! There are some peaches in Georgia today! Closed Board meetings?. that are non-exectutive, non-confidential discussions. This is against most state laws and although I'm not up on Georgia laws, I recommend that you do some research on Sunshine laws and open board meeting laws as they pertain to Georgia. In addition, this might be addressed in your HOA docs. It certainly is in ours!

Depending on how the retainer agreement has been writen, it would be hard to say if the NANO-MANAGING president can ban you from contacting the attorney. If the retainer agreement doesn't address this, I don't see how they could stop you from contacting the attorney.

Hopefully your HOA has general liability and Directors and Officers D&O coverage, but I don't even know if that would cover you for what is about to happen possibly. Consult your personal attorney as well as your own personal insurance agent. There are some homeowner's policy that can be endorsed for liability exposures that arise out of your actions as a board members.

BTW - What do you mean by Policy Manual?

The attorney's opinion I assume was in writing? I also assume the opinion was paid for by the Association funds? The opinion then can be shared with the membership. Unless the attorney just said....then it is just hearsay.

Usually the President is the liaision not just with management but the attorney as well. The reason for just the MC or President to speak with the attorney is that the attorney's meter begins charging the HOA once the call begins. Therefore in order to reduce fees it may be necessary that there is only 1 or 2 speaking with the attorney.

Roger, Gloria, it was my understanding from the original poster's post that the policy had ALREADY been established that anyone on the board could contact and discuss matters with the association attorney -- until this incident, which is when the president threw a hissy fit and told her not to do it anymore. I also understood the original poster to say that the attorney is on a "retainer" and that the phone calls are not "billed."

In addition, to Gloria, regarding the "in writing" or "verbal," here is a direct copy from the original post:

" She [the attorney] confirmed all of this in writing to the entire Board. "

Mike s1- Policy manual. Ours is called an Administrative Manual. What do you call a listing of policies that are voted on that affect homeowners but are not published into the rules and regulation (or in our case, ever shared with the membership)?

Gloria and others: We have a flat retainer so phone consultations for any board member would be free-however, the policy just doesn't address who can call and who can't; however anything she puts in writing will cost us an additional fee. I informed the Board president immediately that the atty intended to clarify her position in writing but couldn't get to it for 5 days. He chose not to call her and cancel the written opinion.

I like your statements that, since the attorney's opinion is corporate knowledge paid for with our dues, that it can be shared with the membership.

I can assure you that the Board will never release this written opinion on their own to the membership. If I were suggest it, they would just vote it down. The only way this information will ever get to the membership is if I release it myself. The Board meetings are closed, all discussion that takes place from the beginning to the end of the meeting was voted to be considered executive session, and the Board minutes are distributed to no one but Board members. (I am obviously pro open board meetings and pro posting our minutes.) No one ever asks the Board to see the minutes.

I know that if I share the atty's opinion with membership I need to be ready for all hell will break lose.

I guess I need to contact our HOA attorney even if the Board President says not to. I want to do the appropriate thing for the Association. If she tells me I can't talk to her, then I can't talk to her and I'll get my own atty.

Action of SC and the Board president.

One issue at a time.
#1. The President has no authority to act independantly from the Board. The President is elected by the Board, therefore, he serves at the wishes of the Board. The President or any Board member cannot dismiss a Board member. BOD are elected by the membership and can only be dismissed by recall, which is a member vote and has nothing to do with Board action.

The correct (one of them) action here is for the BOD member to copy each Board member with the Attorneys written response at a regular meeting. He should make a motion that the attorney be requested to appear at a meeting of all Board members to discuss the Attorney correspondence, and the President's authority to act, and his demeanor in his role as president.

Until this conflict can be sorted out and the president reined in, nothing good will come of this BOD. I would also ask that this meeting be an open meeting and all owners can attend. Approved or denied I would make it part of the record as well as everthing that took place at the BOD meeting and the meeting with attorney.

Isn't there any other HO that are paying attention and willing to suport a right cause there? A sad situation, to be sure. And how can we understand what all is entailed here, but one thing is clear, what ever is happening and who ever is doing what absolutely has to be handled in open forum, nothing behind the scenes and all comments at meeting should be recorded.

SC: Hold on a minute! Yes, the Board President, IMO, has not correctly passed on the info (from the attny) to the rest of the Board/Committee. Yes, the President should have the right to speak to the attny on his own; however, the problem that has arisen is the Pres. did not dispense the info he received. He dispensed info but it was 'his' info as 'he' wanted to relay it to others.

You ask whether you should get your own attny; and can the Pres. ban you from consulting with the Assn. attny? No, to both.

The Board needs to work as a collective Board. The fact is, this Pres. took matters in his 'own hands' and actually acted less than honest in relaying info from the attny. to the entire Board. But, SC, you don't want to act as a rebel to resolve the situation.

My suggestion is to invite the entire Board and Pool Committee to meet regarding this 'diaper' issue. Before the meeting, arrange with the attny to be available at a specific time for a 'conference' phone call which the Board/Comm. will be privy to. If the attny. won't agree to having a conference call to repeat the info, then ask for the info in writing for your community records. You will need to initiate a rule on this anyway, and it will be valuable to have it in writing as backup to your rule.

This will show the Pres. that he cannot act as a 'lone ranger'--he will be found out and it will enforce the collective power a Board has in working together.

As far as the counsel being appointed yearly...your docs may be speaking to an annual contract with counsel, not necessarily meaning that you have to change counsel each year. Keep us posted and good luck!

Sc,

If your HOA falls under the POA 44-3-220 of Georgia, your BOD is acting illegally by not having open meetings with the homeowners, vote by the BOD or not, your documents cannot usurp the states. Your attorney should have told you that the state Property Owners Act has precedent over any written documents that the individual HOA has (not covenants):

44-3-228.
Unless the instrument provides otherwise, a quorum shall be deemed present throughout
any meeting of the members of the association if persons entitled to cast more than
one-third of the votes are present at the beginning of the meeting. Unless the instrument
specifies a larger majority, a quorum shall be deemed present throughout any meeting of
the board of directors if persons entitled to cast one-half of the votes in that body are
present at such meeting.
44-3-229.
If the instrument provides that any member of the board of directors or any officer of the
association must be a lot owner, then, notwithstanding Code Section 44-3-221, the term 'lot
owner' in such context shall, unless the instrument otherwise provides, be deemed to
include, without limitation, any shareholder, director, officer, partner in, or trustee of any
person who is, either alone or in conjunction with any other person or persons, a lot owner.
Any individual who would not be eligible to serve as a member of the board of directors
or officer were he or she not a shareholder, director, officer, partner in, or trustee of such
a person shall be deemed to have disqualified himself or herself from continuing in office
if he or she ceases to have any such affiliation with that person.
44-3-230.
Meetings of the members of the association shall be held in accordance with the provisions
of the association's bylaws and in any event not less frequently than annually. Notice shall
be given to each lot owner at least 21 days in advance of any annual or regularly scheduled
meeting and at least seven days in advance of any other meeting and shall state the time,
place, and purpose of such meeting. Such notice shall be delivered personally or sent by
United States mail, postage prepaid, to all lot owners of record at such address or addresses
as designated by such lot owners or, if no other address has been so designated, at the
address of their respective lots. At the annual meeting, comprehensive reports of the affairs,
finances, and budget projections of the association shall be made to the lot owners.

If your documents do not state that there is a specific person or persons only allowed to deal with the attorney, then you have every right to call him/her. You should get another member of the board as a witness when you call. IMO, even if it costs a few dollars, it is well worth the expense to get a written answer to any question posed to an attorney. This takes the onus off of the board. Again, IMO, the first question you should ask the attorney is for a ruling on the POAct and the open meetings requirement. When this is in written form, call the membership meeting. Then go from there.