The question does not say to whom or about what the report is being made. Either may make a difference. The recipient may determine who makes the report. For example, if the report is to a municipality and only the Board can make the report, not its agent, then that determines the answer.
Likewise, if the content of the report is such that it should. Or must, come from the Board, then that too determines the answer.
If neither the recipient nor the content determines the answer, then the parties should first look to the agent’s contract. If it provides for the agent to make the report, and doing so is not illegal (or beyond the scope of what can be delegated by the Board under applicable state law), then the agent should make the report (or will be in breach of the contract).
Finally, If the contract is silent, and the action is legal, the agent should follow the instruction of the Board and make the report.
Of course, there might be exceptions to all of what I’ve said above depending on the circumstances. It would be prudent for the Board to contact the Association’s lawyer about this question.
Austin Law Firm, LLC
226 E. Market Street
York, PA 17403
Generally speaking, the manager is an agent of the board of directors, who has the ultimate authority to make decisions for the Association. If a property manager has valid reasons for not presenting a report as directed by the Board, the manager should discuss the situation with the board. If there is a dispute between the Board and the Manager that cannot be reconciled through discussion, then I recommend that the matter be shared with the Association’s legal counsel for an opinion as to how to best handle the conflict/differing approaches. The Association and manager should ultimately follow the advice of the Association’s legal counsel.
Hellmuth & Johnson, PLLC
8050 West 78th Street
Minneapolis, MN 55439
Let’s assume that the report is a report to the owners about particular conditions, that the manager believes that the report either fails to disclose information that the manager believes is material or contains affirmative misstatements, and that the manager is being asked to present the report orally at a meeting of the owners. (If the report is in writing, then the agent has no reason to distribute the report under its own letterhead.)
In theory, the agent can announce to the owners that the “following” report was prepared by the Board, that the Managing Agent is reading the report on behalf of the Board, and that any questions about the report should be addressed to the Board. That could help to absolve the Agent from legal responsibility if the report were false or misleading. (Even in that case, though, if the omission was material, management knew it, someone relied on the advice and was injured as a result, the Agent might be sued for “aiding and abetting a fraud.”)
In practice, though, owners treat the Managing Agent as if it were an independent consultant, and will hold the Managing Agent morally and politically responsible for misstatements or omissions. In other words, the Managing Agent may be indemnified against legal liability under its Management Agreement, or be insured under the Association’s liability policies, but it will still be blamed by the owners for delivering an inaccurate report. So the Managing Agent has to decide whether it is willing to deal with the potential legal impact that may accrue from delivering the inaccurate report, and (possibly more important) with the potential damage to its reputation in the community from doing so. If not, then the agent has to consider resigning from the account.
If the writer is asking on behalf of the Board, then I would recommend that the Board put on its “big boy pants” and either listen to its Managing Agent or deliver the report directly to the owners.
Spolzino Smith Buss & Jacobs LLP
733 Yonkers Ave
Yonkers, NY 10704-2635
(212) 688-2400 ext 4102
The manager has an obligation to the board but the manager has an overarching duty to the association. If a manager feels that a report portrays facts improperly, the manager has a right and likely an obligation to decline to provide the report. In fact, the manager may have a duty to provide accurate information if the board presents the inaccurate report in spite of the manager’s objections
McGovern Legal Services, LLC
PO Box 1111
New Brunswick, NJ 08903-1111
Management acts at the direction of the board. So, if the board instructs management to present a specific report be, management is duty bound to present the same, unless management is informed and believes that it would be un-ethical to do so. In such instance, management should so advise the board and consult an attorney experienced in the community association law field for guidance.
Nelson Mullins Riley & Scarborough, LLP
BNC Bank Corporate Center, Suite 300
3751 Robert M. Grissom Parkway
Myrtle Beach, SC 29577
First and foremost, the Manager works at the behest of the Board. The Manager needs to do as the Boards directs, unless the act is illegal, in which case the Manager needs to advise the Board accordingly and report this to the management of their firm. If they are that uncomfortable, they can certainly refuse, but be ready for the consequences.
Matrix Property Management Group
1215 Livingston Avenue – Suite 306
North Brunswick, New Jersey 08902
732 – 228-8200