If you have been defamed by a Unit Owner or resident flowing from your position as a Board member, it is appropriate to use Association resources to defend yourself. Before doing so, however, you should check with your legal counsel to make sure he/she agrees that you have been defamed. Most often, Board members are found to be “semi-public figures”, and the standard for defaming a semi-public figure is a high one, requiring more than mere negligence. There must be purposeful conduct.
Also, if there is a personal recovery in a defamation suit, the Association would be within its rights to recover its expenses.
Robert Griffin
Griffin Alexander, P.C.
415 Route 10 Ste 6-8
Randolph, NJ 07869-2100
(973) 366-1188
rgriffin@lawgapc.com
www.lawgapc.com
This issue is becoming all too common in planned communities. More and more I see owners who dislike actions being taken by the current Board bullying and harassing individual Board members with the aim of getting them to resign. Board members must remember that when they act in their official capacity, they are acting as fiduciaries, not their individual capacity. If action is taken against them as Board members, then the Association probably has an obligation to defend – but check the Governing Documents. If, however, action is taken against them in their individual capacity, then there is probably no duty to defend by the Association. The individuals may want to see if their homeowners’ insurance provides any coverage.
Sara A. Austin
Austin Law Firm LLC
226 E. Market St.
York, PA 17403
717.846.2246 phone
717.846.2248 fax
saustin@austinlawllc.com
www.austinlawllc.com
Generally, the Board must act in the best interest of the Association and is charged with the responsibility of following and enforcing the governing documents and rules and regulations. These obligations are not personal and any owners that slander, defame or otherwise intimidate Board members are out of line. The Board has the right to use Association resources to defend against such attacks.
David Hellmuth
Hellmuth & Johnson, PLLC
8050 West 78th Street
Minneapolis, MN 55439
(952) 746-2107
dhellmuth@hjlawfirm.com
www.hjlawfirm.com
When we contact resident’s about violations we get beat up on, bullied and slandered on social media. Our approach so far has been the “high road” and not respond. We’re starting to feel like we did not give up our rights to defend our reputations when we joined the board. What is our association’s responsibility and our right as a board to use the association’s resources to defend our reputations when attacked in relationship to our volunteer positions?
First and foremost, I would ask if the violations being enforced are supported by the majority of the community. If so, then I would image that this negative behavior is driven by a select few individuals that don’t respect or agree with the rules. That being said, a first step would be to try and reach out to these individuals in private as an attempt to educate them and reach a common ground. If that approach fails, then it may be in the best interest of the Board to “respond” to these complaints as a way to broaden the perspective of the audience. This should be done very carefully. The responses need to be educational, polite, and professional. I strongly recommend limiting the conversation to a single response to avoid a constant back and forth. Additionally, the Board can speak to others in the community that are supportive of the rules and ask them to chime in so that it is clear that these negative individuals are not the voice of the majority. After all, a negative public perception of a community in social media can have negative impacts on both resale values as well as insurance premiums.
Other factors to consider are the platforms being used to broadcast these messages. Are they controlled by the Association (i.e.- a community website, Facebook page, etc.) or an unaffiliated page? If the platform is controlled by the Association there is likely a way to monitor or restrict comments. Furthermore, if a majority of the community is complaining about the rule enforcement actions of the Board (and not a just a select few) then perhaps the Board should revisit those rules to see if they should be changed as the community dynamic does tend to grow and change over time. Lastly, if the messages, comments, etc. cross the line of being civil and are threatening in nature it may be wise to involve the Association Attorney or even the police.
Jason R. Keller, CMCA, AMS, PCAM, CPM
Director of Operations
Scalzo Property Management, Inc.
2 Stony Hill Road, Suite 201
Bethel, CT 06801
203-790-6888 ext. 689
203-790-9390 Fax
www.scalzoproperty.com
I believe that there are three general responses to social media slander made against a Board or against a property management company professional. I make use of two of these and generally avoid the third. Coincidentally, the two I make use of are found in the book of Proverbs: “Answer not a fool according to his foolishness, lest you become like him yourself. Answer a fool according to his foolishness, lest he be wise in his own eyes”. While the social media attacks may not be made from “fools”, what we may be accused of is often foolish.
Option 1: Keep silent. “Answer not a fool according to his foolishness, lest you become like him yourself”. In my opinion, this is often the best response to an attack that appears to be far off base to the average reader. An angry owner may post a ridiculous statement online that makes no sense or has no basis. By not responding, you are leaving that owner out to expose their own foolishness.
Option 2: Respond, but do so generally in order not to disparage the person or create an argument. “Answer a fool according to his foolishness, lest he be wise in his own eyes”. For example, if an owner was sent a violation letter for having a bird feeder on their deck and angrily posted a comment online that said something like “This Board and Management are awful. They restrict everything we try and do. We want our community to be one with nature. They should get off the Board and move to the city”. I would consider responding to this post in general, with a statement like: “We want our community to know that we, like many of you, have an interest in our community being connected with nature. As such, we have decided to install two bird houses near the clubhouse. The birdhouses will not contain any bird feed since we have witnessed this attracting the racoons, bears, and mice.”
Option 3: Tit for tat approach. As much as you want to go back and forth with an owner, avoid it. You may feel like you won the battle, but you will lose the war. That owner may be your next board member.
Brian Weaver
Wilkin Management Group
1655 Valley Rd., Suite 300
Wayne, NJ 07470
201-560-0900 x 4504
bweaver@wilkingrp.com
It would be the board’s decision as to whether to fund the libel/slander/defamation suit brought by a board member against a homeowner.
And I see no way for the association to recoup these costs from the homeowner.
These actions by homeowners are a sign of the times and works to greatly reduce the number of owners, qualified or unqualified, who wish to serve on the board.
It seems like every month we have a board facing the situation where there are not enough owners on the board to conduct business.
I see a time in the not-too-distant future where associations will have to pay receivers/trustees to sit on the board in order for business to properly take place.
Rinaldo Acri
ACRI Commercial Realty
290 Perry Highway, Suite 1
Pittsburgh, PA 15229-1864
(412) 459-0111
rinaldo.acri@acrirlty.com
www.acrirlty.com