What do you do if a board member breaches board ethics and confidentuality?

We have a board member who has mailed unapproved minutes and sent it to all the co-owners with his complaint about a particular board member. Isn't this a censure issue? He also has in a meeting with co-owners, read a complaint by a co-owner against a board member (who was unaware of the complaint), naming all people involved. It embarassed the board member and also, I think violated confidentually and ethical behavior. What think you guy?

Yes, this warrants a censure - and a vote of no confidence by the board, followed by a request that he resign immediately. Keep in mind you can't kick him off - only the homeowners can vote him off, either through a regular board election or recall.

In the meantime, schedule an executive session and have the man explain himself. Then vote on the censure and note the actions (check your documents to see how that's addressed) and have the man explain himself. If he's a board officer, vote to remove him effective immediately and appoint someone else. Publish the censure in the next board meetings and write a letter to the association apologizing for the man's actions, reminding everyone on proper procedure and why it exists. Be sure to check your documents first to see if they mention executive sessions and/or board member discipline to ensure you're doing everything right.

Send a copy to the association attorney to CYA, as this sort of thing can and will get ugly, especially if the board member starts screaming about suing. The attorney could also reiterate that board meeting minutes reflect the official actions of the association and must be approved by the board - otherwise the board places the association at risk for major liability.

I didn't check what state you were in before writing, but the Davis-Stirling website has a great article on censures. Davis-Stirling is California's HOA legislation and the website is run by a HOA law firm. Even if you don't live in California, I find it has a lot of helpful information that could be adapted by other HOAs (after reviewing their own state law, of course). Here's the link - https://www.davis-stirling.com/HOME/Censuring-Directors#:~:text=A%20censure%20is%20a%20reprimand,against%20fellow%20directors%2C%20etc.)

If this board member doesn't resign, the rest of you should strive to remain professional and transparent in your actions, and keep the homeowners in the loop. This would also be a good time to establish a code of ethics for board members, adopt it via a resolution during a board meeting and publish that too. This will show everyone what the expectations are regarding board service, although you can't MAKE anyone sign a statement promising to comply. Here's a model code of ethics from the Community Association Institute (CAI) you might want to adapt: https://www.caionline.org/HomeownerLeaders/ResourcesforHomeownerLeaders/G2G_ModelCodeEthics.pdf

You could remove the board member, but usually only owners can do that; board members cannot. But you could work to have owners do that.

What good would censure do?

It's true censures won't guarantee a board member will stop behaving badly, but part of the reason it should be considered is to send a message to the entire board, not just the jackass. Certain behaviors such as distributing unapproved minutes could expose the association to liability issues. And if you have D & O insurance, the carrier might not look kindly on a board that DIDN'T call out a board member for irresponsible behavior.

As a practical matter, if you don't take steps to stop this kind of behavior early, it will continue - and next time, this board member may do something even more offensive that could result in legal action against the association. Not to mention how difficult it may become to work with someone who's a jackass. You don't have to be BFFs with everyone on the board, but you should be mature enough to find a way to work together because the primary reason all of you are there is to run the association in an efficient and effective manner. How can you do that when you have a board member or two who aren't even mature enough to talk out a personality clash with another board member?

This isn't grade school - board members are running a non-profit corporation and managing hundreds of thousands of dollars to maintain the common areas and provide services as stated in the documents. You may not do everything perfectly (no one's perfect), but everyone should expect and demand that people entrusted with the board member position will behave in a responsible manner and not throw hissy fits because they didn't learn in kindergarten how to play well with others. You're right, nothing the board does should be a surprise to the members, but some things there could be sensitive issues that arise that should be handled with care. If you're not sure how to do that, talk to the association attorney. This is why executive sessions exist- and why they should be RARE.

In the meantime, I for one don't have time or patience with people who engage in BS behavior because they want attention - focus on the topic at hand and if you can't or refuse to, get the hell off the board and go do something else.

I am not sure ethics policies that are not part of an HOA'S governing documents are legally-binding.

Some HOA's may have governing document language that allow any homeowner to request and receive minutes within a certain time period-- say 30 days, whether they are approved or not.

Perspective on COE:

https://www.latimes.com/business/la-fi-associations-ethics-codes-20160526-snap-story.html

and

https://dessaules.com/blog/2018/2/17/hoa-codes-of-conduct-and-why-they-are-unforceable