If the board member is acting in an official capacity, within his/her duties, then his/her actions put the board at risk for potential legal liability to the resident. If, however, the board member is acting either in an individual capacity or beyond his/her official duties, then there should be no liability for the board.
If there is a question, or just to be safe, the best course might be to follow the bylaws and (if possible) remove the person from the board.
Sara A. Austin, Esq.
Austin Law Firm LLC
226 E. Market St.
York, PA 17403
Phone: (717) 846-2246
Fax: (717) 846-2248
The inquirer does not specify the types of activities the board member — call him “Mr. X” — is doing that treats a resident unfairly, although it is reportedly close to being illegal conduct. If the conduct is illegal discrimination, Mr. X jeopardizes the protection under the business judgment rule and likely under the indemnity provisions of applicable insurance coverage.
The inquirer should consider placing this on the board’s meeting agenda, perhaps in executive session. The entire board should be aware of Mr. X’s alleged conduct. Mr. X should be reminded of his duty as a fiduciary of the association, and called upon to cease such conduct. If Mr. X persists, and enough people agree that the conduct is hurtful to the association, the organizational documents and association’s attorney should be consulted to consider procedures for removal of Mr. X as a board member.
Lewis Montana, Esq.
Levine & Montana
1019 Park Street – P.O. Box 668
Peekskill, New York 10566
As a member of the board, you have a fiduciary duty to act in the best interests of the association. Inasmuch as this resident has reported the conduct to the management company (which is the agent for the board) and you are aware of it, it is a matter of concern to the board. You should bring the matter before the board at a meeting, and the board should determine what action, if any, should be taken against this “fellow board member.” In reaching this decision, the board should evaluate the conduct of this board member in the same manner which it would when evaluating the conduct of any other homeowner, and determine whether it violates any provision of the association’s declaration, bylaws or rules and regulations. The offending board member should recuse himself or herself from any discussions and vote with respect to this matter. The failure of the board to act under these circumstances could subject the association to liability in the event that any future conduct by this board member, which could have been prevented by the board if it had acted, should cause a homeowner to sustain legal damages.
John H. Gettinger, Esq.
Shapiro Gettinger Waldinger & Monteleone, LLP
118 North Bedford Road
Mount Kisco, New York 10549
Depending on exactly what is going on, this board member may be creating liability for the association — although it is hard to know without more information. If it is truly a matter that is serious then the entire board should be discussing and handling the matter as a whole. Our advice to boards that we represent is to always act together. It sounds like you may have what we sometimes call a “rogue” board member if he/she is acting without the approval of the rest of the board. It sounds like this is a matter that needs the board to address and to handle and that the rogue board member needs to be taken in hand and made aware of the possible problems being created.
David C. Wilson, Esq.
PO Box 41027
Greensboro, NC 27404-1027
If the matter has been reported to the local authorities and they are now in control of the situation, I would allow the authorities to direct our steps. However, if the local authorities passed the responsibility back over to the association, and my individual efforts to reason with this “rogue” board member proved fruitless, then I would call for an immediate meeting with all board members, management, and possibly the association’s counsel if the issue was serious enough. Together, as a full board along with our professionals, we would address the situation and determine what should be permitted and what should not be permitted. If the “rogue” board member continued down a path that was contrary to the wishes of the entire board and professionals, then we would ask that this board member willingly resign. We would explain to this board member that in order to protect their individual reputation and possibly the association, it would be best to quietly resign. However, if this board member chose not to quietly resign and instead persisted on, then we would take the next steps outlined in the governing documents for removing a board member. Those steps may differ from association to association. Ultimately, if the situation was bad enough, the association’s counsel may need to send a formal letter to the board member requiring them to cease and desist.
Wilkin Management Group, Inc.
1655 Valley Road, Suite 300
Wayne, NJ 07470
Phonel: (201) 560-0900
Fax: (201) 560-0901
I’m assuming that you mean that the behavior does not go beyond “legal” activity. However, if the resident has complained to governmental authorities as well as management, the resident certainly thinks that he or she is being abused.
It’s tough to comment on this without more details on the nature of the “unfair” treatment. Is the resident being insulted on ethnic grounds? Is the resident being stalked or ogled? Either of those could be civil rights violations meriting outside intervention.
Assuming that outside authorities are truly unable to act, you may still be in a position to intervene if the behavior is offensive. Many association regulations contain prohibitions against behavior that unreasonably “disturbs” other residents. The reasonable test ensures that objective third parties would agree that the behavior is uncalled for. Some boards have also passed a “Code of Ethics” that (among other things) requires that board members treat each other with civility. But unless the code is made part of the bylaws, it functions solely as a moral guide.
Unofficially, of course, you may feel free to convey your opinion to the offensive board member as you see fit.
Kenneth Jacobs, Esq.
Spolzino, Smith, Buss & Jacobs, LLP
60 East 42nd Street, Suite 4600
New York, New York 10165
Phone: (212) 688-2400
Fax: (212) 688-3058
The board needs to draft a code of conduct for board members and pass it.
One of the items in the code of conduct should be a statement that if any of the items are violated by a board member, they must immediately resign.
And then on the candidate profile sheet which board members complete when they are running for the board, put a statement at the bottom that states that by signing the candidate profile, I agree to comply fully with the code of conduct.
Acri Realty, Inc.
290 Perry Highway
Pittsburgh, PA 15229
Phone: (412) 459-0111 x101
Fax: (412) 459-1500
All board members may subject the board and/or the association to legal liability if they take actions that are inconsistent with the law or the governing documents. For example, if a board member takes actions that are discriminatory against an owner, the board may be held liable as if that board member were acting with the apparent authority of the board.
I recommend that the concerned board member get the other board members involved and have a discussion about it. The board, as a whole, should consider a resolution resolving the situation.
David G. Hellmuth, Esq.
Hellmuth & Johnson
8050 West 78th Street
Edina, MN 55439
Phone: (952) 941-4005
Fax: (952) 941-2337
My recommendation is to bring this issue up at a board meeting and discuss it amongst the board. If it is an emergency, I would call for an emergency board meeting. I would not address this in an unofficial capacity. It is better to discuss it openly and memorialize it in the meeting minutes so everyone is on the same page and aware of the facts. This could also prevent this behavior from continuing any further. Everyone must be treated equally and fairly. The board has a duty to the community to be fair and impartial and take guidance from the governing documents of the association. If the board member will not back off, you always have the option of contacting legal counsel.
The board member could be putting him/herself at risk to being accused of discrimination. In addition, there may be something in your documents that gives procedures for complaints. Those should be followed as well. I am happy to review your documents at your request.
Del Val Realty & Property Management
Great Valley Shopping Center
81 Lancaster Avenue, Suite 218
Malvern, PA 19355
Phone: (484) 328-3282
Fax: (610) 500-5682
Generally, board members cannot exercise their powers in a disparate or discriminatory manner that treats one resident differently from similarly situated residents. If that is occurring, then your fellow board member is subjecting the board and the association to risk of liability, depending on the scope and nature of his or her conduct. The fact that you have noticed certain unfair conduct toward one resident suggests that there is at least an appearance of impropriety with respect to the board member’s dealings with that particular resident. Not only is the board member’s conduct potentially discriminatory, but it may also be illegal. Although you do not provide specifics, you have stated that the conduct “is close” to “illegal activity,” and apparently, it is close enough to “illegal activity” that the resident “has reported the board member to the local authorities.”
Under those circumstances, it is important to raise your concerns with the entire board so that the board may immediately address the issue. While your fellow board member may not have responded to you individually, the board member will not be able to ignore the will of the entire board without consequence. Your fellow board member may also believe that he or she is acting appropriately and is not being unfair to the resident under the circumstances. Bringing the matter to the entire board will allow all of the relevant facts to come to light so that the board may make an informed decision regarding the resident.
Finally, I would caution you to limit your interactions with the resident. While your desire to assist the resident is understandable and admirable, keep in mind that as a board member, you do not have an “unofficial capacity.” Everything you say or do, and your knowledge as a board member on this issue may be interpreted as the actions and knowledge of the entire board or the association. Thus, your words of concern or empathy expressed to the resident may later be construed as an admission of wrongdoing by the board or the association. Therefore, try to avoid expressing any personal view to the resident regarding the situation, including your belief that the resident is being treated unfairly. You may freely express those views to the board, and make an appropriate motion accordingly.
Nancy Durand, Esq.
Spolzino Smith Buss & Jacobs, LLP
733 Yonkers Avenue, Suite 200
Yonkers, New York 10704
(914) 476-0600 x4149
The bylaws normally provide the methodology for removing a board member. Usually it takes a special meeting and a vote of a majority of a quorum of owners. However, not all bylaws read the same, so you should consult the language in your bylaws. If this board member’s actions are generally detrimental, that may be the way to proceed.
The bylaws will also provide how to call a special meeting. Generally they can be called by the president of the board, by vote of the board or by a petition from 10% of the owners. Again, all bylaws are not alike, so you should consult your bylaws as to the specific requirements.
If the community generally supports the board member and it’s just an individual personality conflict (not motivated by prejudice against a protected class), it may be something they will have to live with unless the owner can get enough people to petition for the special meeting.
Stephen R. Buschmann, Esq.
Thrasher Buschmann & Voelkel
Market Square Center
151 N. Delaware St., Suite 1900
Indianapolis, IN 46204-2505
Phone: (317) 686-4773
Fax: (317) 686-4777
Board member interaction with other homeowners is an important consideration. When a homeowner becomes a board member, they need to properly understand their role and how their actions (along with their perceived actions) impact their surroundings and more importantly their neighbors. A board member may have strong opinions regarding issues and individuals within the community. Being that board members often live within the community they serve, it is only natural to take certain situations personal and have a desire to take matters into their own hands when conflicts arise. However, as a board member, it is important to realize that you are one of many votes that make up the board. One board member has very limited authority to act on their own relative to association business without the blessing of the majority of board. Failing to respect that the board governs the community in unity as a group, and in the best interest of the community (regardless of individual opinion), can be a major problem. A board member that does not understand and respect this structure, therefore going off on their own as an individual, can very easily cross the line.
In this particular situation, it is noted that the community has a management company involved. One of the major benefits of having a management company is that it eliminates the need for the close personal interaction between board members and homeowners. These sensitive situations can and should be handled by the management company, leaving the board to simply make key decisions and set policies. With a good management company there is very little need for the board to get involved in the routine, day-to-day management of the community. I would recommend that the board review, discuss, and vote on putting in writing a request to this rogue board member asking them to cease communication with the impacted homeowner and clarify that their actions are not supported or endorsed by the board. I am not an attorney (therefore don’t want to provide legal advice) but would imagine that such a letter would hopefully help alleviate the situation for the homeowner, educating the board member on their role, and clarifying that these actions are not condoned by the board. If this letter is unsuccessful in halting the harassment, then I would recommend the board promptly obtain legal advice on how to ensure that the board (and essentially the community as a whole) is protected and their liability minimized.
Scalzo Property Management, Inc.
2 Stony Hill
Bethel, CT 06801