How to get rid of bad board members

Started by PaulL12 • 18 replies • 589 views

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PaulL12 (California)
Posts: 116

Posted:

I am a board member of an HOA, and the other members of the board seem to be acting outside the boundaries of their fiduciary duties. A homeowner had been wronged by one of our vendors to a cost of several hundred dollars. Although - for reasons I don't know - the homeowner did not seek retribution, I did discover written documentation that the homeowner had been wronged - which shows with 100% certainty that they were wronged. I presented it to the other board members, but they did not look at the documentation. I attempted to bring it up in an executive session, merely asking that the rest of the board merely look at the documentation - yet they refused. As the documentation I have clearly shows that the homeowner had been wronged, I feel the other board members are not acting within their fiduciary duties.

Is this grounds to have them removed as board members? If so, how would I go about doing this?
What other thoughts do folks in here have?

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By PaulL12 on 10/01/2021 8:43 PM
I am a board member of an HOA, and the other members of the board seem to be acting outside the boundaries of their fiduciary duties. A homeowner had been wronged by one of our vendors to a cost of several hundred dollars. Although - for reasons I don't know - the homeowner did not seek retribution, I did discover written documentation that the homeowner had been wronged - which shows with 100% certainty that they were wronged. I presented it to the other board members, but they did not look at the documentation. I attempted to bring it up in an executive session, merely asking that the rest of the board merely look at the documentation - yet they refused. As the documentation I have clearly shows that the homeowner had been wronged, I feel the other board members are not acting within their fiduciary duties.

Is this grounds to have them removed as board members? If so, how would I go about doing this?
What other thoughts do folks in here have?

Based on what you stated, no, even if they were appointed. Do you think you could somehow remove a director on your own?

CathyA3 (Ohio)
Posts: 6,299

Posted:

Getting rid of board members is only part of the battle - you need to have competent volunteers willing to take their place, and this is where a lot of recall efforts fail.

In most cases getting rid of board members involves holding a special meeting with a single agenda item on it (recall and replace). Most states have strict requirements on how to go about this. In some states, board members who were appointed to the board to fill a vacant position (ie. not elected at the annual meeting) can be removed by the board

But board members serve at the pleasure of homeowners and can be removed with or without cause. For more information see:

https://www.davis-stirling.com/HOME/D/Director-Removal-Recall

CathyA3 (Ohio)
Posts: 6,299

Posted:

Also see this information about fiduciary duty:

https://www.davis-stirling.com/HOME/F/Fiduciary-Duties-of-California-HOA-Directors

It's not what some people think it is. The board's duty is to the HOA corporation, not necessarily to individual homeowners. If homeowners are being treated consistently and impartially in accordance with the HOA's governing documents and CA state law, then the board is doing their duty even if an individual homeowner thinks they have somehow been "wronged".

In this case, though, it doesn't sound as if the homeowner has a beef - rather someone else thinks they should have a beef. (Interesting word: "retribution".)

PatJ1 (North Carolina)
Posts: 568

Posted:

Quote:

The board's fiduciary duties are to the HOA and it's common property, not to owner's personal property. Damages to an owner's personal property by an HOA vendor is an issue between the vendor and the owner.

Unless otherwise addressed in the governing documents, that the HOA provides security and coverage's to owner's personal property, this is not an issue for the board to address.

Example: A vendor damages an owner's vehicle while preforming services to the HOA. The owner has the right to pursue a damage claim with the vendor who caused the damage.

HOA's should always require that their vendors carry sufficient insurance at all times.

OP states that the owner is not seeking damages from the vendor. This is not a board issue. It is an owner to vendor issue and perhaps the other board members were aware of that and did not inform OP as to why the board was not addressing it.

AugustinD
Posts: 3,698

Posted:

PaulL12, who were the parties to the contract for the work done by the vendor?

Who paid the vendor for the work that was supposed to be done?

Can you say a bit more about about this 'wrong' perpetrated by the vendor on the owner?

I realize folks posting here often do not want to share too much, so as to not risk losing their anonymity. But the questions the others are asking are good ones. Maybe answering the questions above will allow the forum to help you more.

SheilaJ1 (South Carolina)
Posts: 291

Posted:

I see no issue here. The owner isn’t pursuing it, so you should let it go. Boards often do this to avoid getting involved and possibly getting blamed, as long as they stay quiet they feel they can get away with it and they often do.

Stay on the board, continue to point out things but if they ignore it, let it go, eventually some owner will get on them.

PatJ1 (North Carolina)
Posts: 568

Posted:

Quote:

Posted By SheilaJ1 on 10/02/2021 9:15 AM
I see no issue here. The owner isn’t pursuing it, so you should let it go. Boards often do this to avoid getting involved and possibly getting blamed, as long as they stay quiet they feel they can get away with it and they often do.

Stay on the board, continue to point out things but if they ignore it, let it go, eventually some owner will get on them.

Sheila,

Do you think this an actual board issue?

KerryL1 (California)
Posts: 14,550

Posted:

I'm wondering, Paul, if you even properly "presented" your concern to the board. As you know, in CA, executive session topics must be placed on that meeting's agenda 2 days in advance for the Board to discuss and/or vote on the matter.

When you write "our vendor," does this mean the assn. hired the vendor to do something in the owner's home and the work caused damage?

How long have you been a board member? Are you able to get items on the agenda and approved?

KerryL1 (California)
Posts: 14,550

Posted:

SheilaJ1 (South Carolina)
Posts: 291

Posted:

Quote:

Posted By PatJ1 on 10/02/2021 9:36 AM

Sheila,

Do you think this an actual board issue?

In this situation no.

But I have seen where a trash truck damaged an owners fence and the owners complained to the HOA and it was repaired by the vendor through some internal communication. I have also seen where the lawn vendor mower damaged a fence but the owner never pursued it and the owner just left the damage and it was small enough where the HOA didn’t cite the owner.

Back to the topic. I don’t see any reason for removal of board members.

PaulL12 (California)
Posts: 116

Posted:

Quote:

Posted By AugustinD on 10/02/2021 7:12 AM
PaulL12, who were the parties to the contract for the work done by the vendor?

Who paid the vendor for the work that was supposed to be done?

Can you say a bit more about about this 'wrong' perpetrated by the vendor on the owner?

I realize folks posting here often do not want to share too much, so as to not risk losing their anonymity. But the questions the others are asking are good ones. Maybe answering the questions above will allow the forum to help you more.

In this instance it wasn't about contract work done by a vendor. What happened is the parking monitoring company called for a vehicle to be towed when - according to all written documentation - it should not have been towed. As there is no ambiguity in this one, I will not go into details.

Apparently the homeowner or owner of the vehicle paid the tow company. The HOA pays the parking monitoring company.

PaulL12 (California)
Posts: 116

Posted:

Quote:

Posted By KerryL1 on 10/02/2021 9:37 AM
I'm wondering, Paul, if you even properly "presented" your concern to the board. As you know, in CA, executive session topics must be placed on that meeting's agenda 2 days in advance for the Board to discuss and/or vote on the matter.

When you write "our vendor," does this mean the assn. hired the vendor to do something in the owner's home and the work caused damage?

How long have you been a board member? Are you able to get items on the agenda and approved?

Yes, this was properly presented. When it was first discussed, the written documentation was not available. So the board members voted based on what they THOUGHT was in the documentation and not what was actually in the documentation. After I presented the full written documentation, the board declined to discuss it any further, insisting it had already been voted on.

AugustinD
Posts: 3,698

Posted:

PaulL12, a charge of violation of fiduciary duty is way too vague to have any traction, in my opinion. To me, the bottom line is that the Board has spoken. You are stuck living with the majority's vote or exercising certain options. None of the options are appealing to me.

Option 1: You could put what you know or perceive out to the owners and ask for a recall. I bet the recall would fail.

Option 2: You could ask for IDR. This will make you even more of an outsider to this board.

Option 3: You could try to have a confidential meeting with the owner whom you claim was wronged. But the latter poses an ethical dilemma in a few ways.

Option 4: Depending on all the facts, if I were in your shoes I might resign from the board and then go to the wronged owner, urging the owner to attempt IDR.

SheliaH (Indiana)
Posts: 6,964

Posted:

Some of you may remember some of Paul's previous posts about the board's parking policy - this is another chapter of that. If memory serves, he's not a fan of the towing policy, although there's a sign in the parking lot stating what will happen. I'm not sure why he's getting involved in this either - if the owner hasn't made a complaint, it could be because....the car WAS parked outside the hours or something else.

I'm with Sheila and Pat - unless and until the OWNER raises a stink, Paul should stay out of it. Paul, if you have some concerns about the policy, it's fine to bring them up to the board, along with some suggestions, but it seems to me that's all you're concerned about. I don't know if it's because you and/or your friends have been inconvenienced, but so far, it doesn't seem like you're making any headway. I'm not sure this warrants tossing the board either - have they done anything else to warrant this action? You're still new to the board, so why not observe and focus on some other issues so you'll get a better idea of how they work. If other homeowners are honked off about the parking or anything else, they will let all of you know.

Until then, just because they've made a decision (or not) that you don't like, doesn't mean they're ignoring their fiduciary duty.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

KerryL1 (California)
Posts: 14,550

Posted:

I was just thinking the same thing, Shelia. I won't look it up but also recall Paul's personal issues with parking. I think he even brought up this incident.

Let it go, Paul It seems you need to find a way to work with your Board. It also must be true there are much larger issues that you as a board member might focus on.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By SheliaH on 10/03/2021 7:35 AM
Some of you may remember some of Paul's previous posts about the board's parking policy - this is another chapter of that. If memory serves, he's not a fan of the towing policy, although there's a sign in the parking lot stating what will happen. I'm not sure why he's getting involved in this either - if the owner hasn't made a complaint, it could be because....the car WAS parked outside the hours or something else.

I'm with Sheila and Pat - unless and until the OWNER raises a stink, Paul should stay out of it. Paul, if you have some concerns about the policy, it's fine to bring them up to the board, along with some suggestions, but it seems to me that's all you're concerned about. I don't know if it's because you and/or your friends have been inconvenienced, but so far, it doesn't seem like you're making any headway. I'm not sure this warrants tossing the board either - have they done anything else to warrant this action? You're still new to the board, so why not observe and focus on some other issues so you'll get a better idea of how they work. If other homeowners are honked off about the parking or anything else, they will let all of you know.

Until then, just because they've made a decision (or not) that you don't like, doesn't mean they're ignoring their fiduciary duty.

I agree. Not Paul's problem.

BobD4 (up north)
Posts: 1,002

Posted:

Quote:

Posted By PaulL12 on 10/01/2021 8:43 PM
I am a board member of an HOA, and the other members of the board seem to be acting outside the boundaries of their fiduciary duties.

A homeowner had been wronged .... I presented it to the other board members, but they did not look at the documentation. I attempted to bring it up in an executive session, merely asking that the rest of the board merely look at the documentation - yet they refused. . . . Is this grounds to have them removed as board members? If so, how would I go about doing this?
What other thoughts do folks in here have?

Whether or not your concern was valid and/or procedurally correct when attempted raised to the Board, a dissenting Board member should try to develop a paper trail for an important ( Board duty ) issue that seems to fail the smell test. That's particularly for materially important item.

Try to insist that your dissent or attempt was recorded in the Minutes, a vulnerable request some Directors have found. Minutes of course can be altered or re-written. Dissenters can get ignored including to get them off a Board .

If all else fails on the big stuff - IF this really was big stuff ? - send a registered letter to the Board at its legal address for service. It might well get you black-balled and ultimately unseated, but there would be some paper trail . . .

AnnaJ1 (Maryland)
Posts: 95

Posted:

Absent something that gives the Board leverage in the CCR's/Bylaws, there's probably nothing that you can do other than wait for the membership to vote them out. It sucks, because this is a very common issue. If you come up with the answer to this, you need to play the lottery, LOL.

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