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Subject: Board Member Censure
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Author Messages
IndieS
(Colorado)

Posts:74


12/19/2017 1:25 PM  
Does the discussion of reasons for censure, as well as the censure, of a Board member, happen during an open meeting?

Or does the discussion of reasons for censure take place in an executive session, and the censure motion and vote happen in the open meeting?

RichardP13
(California)

Posts:2751


12/19/2017 1:32 PM  
What do you hope to accomplish by censuring a director?

Here is one attorney's opinion in California

Powers Unaffected. While expressing strong disapproval of a director's behavior, a censure does not remove a director from the board nor does it impair the director's ability to attend meetings, make and second motions or vote on motions, unless there is reason for recusing the director from a particular vote.
IndieS
(Colorado)

Posts:74


12/19/2017 1:41 PM  
This Board member, along with other previous members, got involved with our insurance company in an attempt to squelch a claim, and the insurance company stopped processing the claim "at the request of the Board". Our attorney has explained that we need the insurance company to process the claim to avoid legal entanglements down the road.

We know that a censure has as much weight as a "Cease and Desist" letter, but it could be a prelude to asking for a recall election if the behavior continues.

I'm still new to this, and still seeking an answer to the question I posed.

Thanks,
RichardP13
(California)

Posts:2751


12/19/2017 1:52 PM  
Being that it potentially may involve litigation, if not so now, I would think the hearing and vote should come in executive session and generalized in open session. This would not preclude the affected director from speaking on his own about the matter.
IndieS
(Colorado)

Posts:74


12/19/2017 1:56 PM  
Thank you Richard. Excellent advice, and common sense as well!
BenA2
(Texas)

Posts:521


12/19/2017 2:03 PM  
There is probably something in the CA state code stating when you can use executive session.

Generally you can go into executive session for personnel matters but board members are not usually considered personnel, although I have heard the argument that they are.

Items in litigation are another example of when it is ok to go into executive session but the you cannot go into executive session because something MAY end up in litigation. Otherwise, you could potentially go into executive session for anything.

As already mentioned, censorship does not serve much purpose but doing it in secret even makes it more ineffective. I would do it in open session as this is a matter that the membership has a right to be aware of.
IndieS
(Colorado)

Posts:74


12/19/2017 2:13 PM  
Thanks Ben. Colorado law indicates the following scenarios that require executive sessions:

§308(4) of CCIOA limits executive sessions to:
a) Matters pertaining to employees of the association or the managing agent's contract or involving the employment, promotion, discipline, or dismissal of an officer, agent, or employee of the association;
b) Consultation with legal counsel concerning disputes that are the subject of pending or imminent court proceedings or matters that are privileged or confidential between attorney and client;
c) Investigative proceedings concerning possible or actual criminal misconduct;
d) Matters subject to specific constitutional, statutory, or judicially imposed requirements protecting particular proceedings or matters from public disclosure;
e) Any matter the disclosure of which would constitute an unwarranted invasion of individual privacy;
f) Review of or discussion relating to any written or oral communication from legal counsel.
RichardP13
(California)

Posts:2751


12/19/2017 2:27 PM  
Think §308(4)(a) covers it nicely.
KerryL1
(California)

Posts:5388


12/19/2017 4:09 PM  
It sounds like Indie's HOA's legal counsel has become involved, so I think 308(4)F applies.

As stated in a different post, your board was advised (still don't know by whom) to act "ASAP" to deal with the rogue director. So the main thing is to get on the record that the Board disapproves or censure this director for his conduct re: x, y, z. Get this censure or disapproval in the minutes to show anyone in the future your board attempted to discipline this director. It shows you all did not ignore his misconduct.

You could go further and ask him via your vote for his resignation, which also would go in the minutes as evidence of your board's attempts to deal with him. In CA, Ex. Sess would clearly be fine because this is "potential" litigation. Invite the rogue director to meet about the censure in an open meeting if he wishes.

Open meeting might be the best idea, but I don't know if it's required.
IndieS
(Colorado)

Posts:74


12/19/2017 7:45 PM  
Thank you for your help. I am always appreciative of how willingly people on this forum give their time.
IndieS
(Colorado)

Posts:74


12/21/2017 12:09 PM  
So the rogue director chose NOT to attend an emergency meeting and was censured for involvement in the issue.

Do the draft minutes go to the censured director for approval before they are released to the HOA?
AugustinD


Posts:1045


12/21/2017 1:11 PM  
The following 2015 article discusses the defamation implications of a board member's censure:

http://www.latimes.com/business/realestate/la-fi-associations-20150503-story.html
KerryL1
(California)

Posts:5388


12/21/2017 1:18 PM  
Did you censure him in Ex. Sess. or an open meeting?

Either way, HOA members don't have access to the minutes until they've been approved by the Board at a subsequent meeting. (In CA: or the draft minutes within 30 days of said meeting, which ever comes first.)
IndieS
(Colorado)

Posts:74


12/21/2017 1:25 PM  
Censure happened in open meeting.

Our Board approves the minutes prior to distribution to the HOA?
IndieS
(Colorado)

Posts:74


12/21/2017 1:33 PM  
I recall reading this article about a censure action proposed in California.

I could be wrong (and have been wrong more times than I care to admit), but it does seem that, if the rogue director clearly acted outside the Board, interfered with the Board's duties and responsibilities, and breached his fiduciary duties towards the HOA, that a censure would be appropriate.
KerryL1
(California)

Posts:5388


12/21/2017 2:49 PM  
I did read the article Augustin posted too. It refers to CA and it does discuss POSSIBLE implications in CA. Since "censure" technically is drawn from Robert's Rules of Order, and some states, e.g., CT require HOA board to use Robert's the CA news item may not apply to them. More, some HOAs require that boards use Robert''s.

Let me recap your situation, Indie. Is the is how it went? Your/your board was advised (by whom?) to deal with this rogue director ASAP.

To that end, i.e., to protect your Association, your Board a called an open Emergency Meeting and the majority of directors present voted to censure the rogue director.

My understanding is that your Board is showing that it disapproves of the action of the rogue director.

Now, though, I'm puzzled about your quote, Indie: "Our Board approves the minutes prior to distribution to the HOA?" Are you saying that someone writes the minutes of your board meetings, but those minutes are never approved BY the Board at the subsequent meeting?
KerryL1
(California)

Posts:5388


12/21/2017 2:49 PM  
I did read the article Augustin posted too. It refers to CA and it does discuss POSSIBLE implications in CA. Since "censure" technically is drawn from Robert's Rules of Order, and some states, e.g., CT require HOA board to use Robert's the CA news item may not apply to them. More, some HOAs require that boards use Robert''s.

Let me recap your situation, Indie. Is the is how it went? Your/your board was advised (by whom?) to deal with this rogue director ASAP.

To that end, i.e., to protect your Association, your Board a called an open Emergency Meeting and the majority of directors present voted to censure the rogue director.

My understanding is that your Board is showing that it disapproves of the action of the rogue director.

Now, though, I'm puzzled about your quote, Indie: "Our Board approves the minutes prior to distribution to the HOA?" Are you saying that someone writes the minutes of your board meetings, but those minutes are never approved BY the Board at the subsequent meeting?
AugustinD


Posts:1045


12/21/2017 3:09 PM  
Posted By IndieS on 12/21/2017 1:33 PM
I recall reading this article about a censure action proposed in California.

I could be wrong (and have been wrong more times than I care to admit), but it does seem that, if the rogue director clearly acted outside the Board, interfered with the Board's duties and responsibilities, and breached his fiduciary duties towards the HOA, that a censure would be appropriate.


I understand you have to give him the HOA's best version of due process. Maybe you have, by calling the meeting, stating the director's actions were the subject, and giving him or her a chance to explain?
IndieS
(Colorado)

Posts:74


12/21/2017 4:53 PM  
yes -- the board approves the minutes at the time they are written -- you'd never know it from recent events, but the board often goes 12 months without holding a meeting, and then, holds one just before the annual meeting. So the directors, over the years, decided that, since they were in the best position to know whether the minutes were accurate, they should approve them when they were written, rather than wait a year when no one recalled what was actually said or done and by whom.
IndieS
(Colorado)

Posts:74


12/21/2017 4:57 PM  
Augustin -- I think you've hit the nail on the head -- I'm not sure we've given our best effort to bring him to justice. Our emergency meeting indicated we would hold an executive session if necessary, after discussing the insurance fiasco, but never specifically indicated we planned to censure, because we didn't know whether we were going to censure until the rogue director showed up and explained the actions taken. Director never showed, so the decision to censure was based on the evidence alone (we have a copy of the memo provided to the insurance company by the other parties). I still don't know whether he should approve the minutes? (Maybe our minute approval process is so awful and weird that we should change it.)
KerryL1
(California)

Posts:5388


12/21/2017 5:45 PM  
There is a basic fundamental process for minutes. Someone--usually the board sec'y or a the property mgr.-- writes them as the meeting progresses. They then are typed and distributed to the board. The Board then votes to approve them and the Board president and secretary sign them.

(By the way, only what was done--in the form of motions-- should be in the minutes, not what was "said."

But you're saying someone writes them at the meeting and they are passed around at that meeting and the board votes to approve or amend them on the spot? And then the president and secretary sign them? On the spot? If that's how you do it and the rogue was absent, he does not vote on accepting the minutes.

But your Board only meets once a year??? What size is your HOA?? How often do your bylaws say the board should meet? This is sounding stranger & stranger. Does your board conduct business by phone or email, which may be against CO statutes? Put another way, how does your board get anything done at all without meetings, motions, votes, etc.?

Maybe that's why so few others on this site are replying?
JohnC46
(South Carolina)

Posts:7594


12/21/2017 5:53 PM  
Posted By IndieS on 12/21/2017 4:57 PM
Augustin -- I think you've hit the nail on the head -- I'm not sure we've given our best effort to bring him to justice. Our emergency meeting indicated we would hold an executive session if necessary, after discussing the insurance fiasco, but never specifically indicated we planned to censure, because we didn't know whether we were going to censure until the rogue director showed up and explained the actions taken. Director never showed, so the decision to censure was based on the evidence alone (we have a copy of the memo provided to the insurance company by the other parties). I still don't know whether he should approve the minutes? (Maybe our minute approval process is so awful and weird that we should change it.)




How can you censure someone that was not there? All you can do is talk behind his back. Shame on you if you did. While I have no issue with censuring him, it must be done properly.

Now do you want to "officially" censure him or just discuss your problems with him? Meaning call the Executive Session to discuss the "legal issue" but turn it into the BOD chastising him conversation. Chastise or censure him, he still has a vote and is probably going to act as he does no matter what you do. Other then get him off the BOD or take legal action against him, you are basically stuck with him and his methods like them or not.
IndieS
(Colorado)

Posts:74


12/21/2017 6:00 PM  
18 member very rural hoa, with very few duties and tendency to allow the secretary/treasurer to do everything

meetings are conducted, secretary takes notes, secretary produces minutes which are electronically shared with those who have computers and shared via paper with those without computers, then board members call or email for the next day or so, indicating minutes are approved or something isn't right, and minutes are subsequently distributed to homeowners after a quorum of directors approve minutes

board generally meets in January and annual meeting is shortly thereafter, usually early February

often times, board that met in January quits and new members are coerced into serving before next meeting is held during the following January. sometimes new members are new to community, were not present during the previous January/February meeting, and have no knowledge of what occurred at previous board meeting, other than to read the approved minutes from the previous board

So a quorum of board members was at the meeting, but rogue decides he won't go. Rogue definitely received the invitation, but feels that the emergency meeting was improper (or knew that what was done was wrong). Should he approve the minutes before they are released to the homeowners? Emergency meeting minutes are going to discuss the insurance interference and the censure.
IndieS
(Colorado)

Posts:74


12/21/2017 6:02 PM  
How do you censure someone to his/her face if that Board member refuses to attend the meeting designed to discuss the matter with him/her?
JohnC46
(South Carolina)

Posts:7594


12/21/2017 6:14 PM  
Indie

Several on here are telling you the way things must/should be done in FL and CA, two of the most heavily HOA regulated states in the US.

You need to look closer at how things can be done in CO. As an example, here in unregulated SC the BOD can call any type BOD Meeting we desire to at any time and not notify our owners. Say we call an Executive Session and the rouge member did not turn up, we can simply cancel the meeting and say nothing to our owners about it.

We could deal with your "rogue" BOD Member most any way we desire to. The only thing we would have to do is follow proper procedure to remove him from the BOD. Which basically is how he was elected to the BOD. Elected by the owners, the owners would have to vote to remove him. Appointed by the BOD, the BOD alone can remove him.



KerryL1
(California)

Posts:5388


12/21/2017 7:01 PM  
Look, Indie, a quorum of the board approves the minutes. Your practice has been that you write and approve the minutes at the same meeting. He was absent so he could not have approved or amended the minutes. A quorum of the board did.

Once signed by the president & sec'y (or whatever is required in your bylaws or in CO), owners may have access to them.

But JohnC raises an interesting point. If the rogue was appointed by the Board and not elected by the Owners, t your board may vote him off the Board.

After all, you're trying to show that you board does not approve of this man's conduct. If you're able to vote him off legally, you might wan to do just that.

But this depends on your bylaws and CO corporations codes.
IndieS
(Colorado)

Posts:74


01/02/2018 5:17 PM  
Things keep getting more interesting.

Rogue director skipped out on emergency meeting last month and the unfinished business related to his behavior has been added to the next Board meeting, where we will give him a chance to explain why he did what he did. He has indicated he will NOT appear for the next Board meeting, but plans to take the matter to the annual meeting in late January, where he will tell the entire HOA about all of the misdeeds of the current Board and why he felt he had to take the reins.

On the one hand, I thought personnel matters were best handled in an executive session (or at least in a Board meeting), but on the other hand, doesn't he have the same rights as every homeowner to bring matters to the annual meeting for discussion?

Ugh.
AugustinD


Posts:1045


01/02/2018 5:31 PM  
Posted By IndieS on 01/02/2018 5:17 PM
On the one hand, I thought personnel matters were best handled in an executive session (or at least in a Board meeting), but on the other hand, doesn't he have the same rights as every homeowner to bring matters to the annual meeting for discussion?


Is the so-called rogue director up for re-election at this Annual Meeting? Are any of the so-called non-rogue incumbents up for re-election? If so, I suggest letting every person state her or his position; then vote; then move on.
IndieS
(Colorado)

Posts:74


01/02/2018 5:57 PM  
Unfortunately, there is a new vacancy, but all other members serve for at least one more year. The rogue is on for one more year.
TimB4
(Virginia)

Posts:15823


01/02/2018 11:07 PM  
Posted By IndieS on 12/21/2017 6:02 PM
How do you censure someone to his/her face if that Board member refuses to attend the meeting designed to discuss the matter with him/her?




The same way you would assess charges against a violation with the violator not attending the meeting.


The Board gave the individual an opportunity.
The individual indicated they will not attend any meeting that this is an agenda item.
The individual said that they will take the issue to the membership.

The Board now need to be on the offense. Otherwise, they will find a divided community answering for things that they are not prepared to answer for (because they don't know what they are).

My opinion, censor.
Then publish the reasons why (without specifics).
The Board censored xyz for failure to obtain board approval before issuing instructions to an insurer.
A censor means that the Board has lost confidence . . .


Note: The Board also needs to remove this individual from office (if it hasn't already).
KerryL1
(California)

Posts:5388


01/03/2018 8:28 AM  
I'm with Tim. Censure him anyway if he doesn't attend.

If he IS an officer of the board, the rest of you directors vote him out of office.

On the annual meeting agenda, the rest of your Board can vote that Owners may only speak on one topic at a time and only for three minutes apiece.

At the annual meeting, a director might respond. Before then, the Boar might ask the rogue to resign. Have you done that?

Remind the rogue in writing that he may not reveal executive session matters to the membership.

More later....maybe
AugustinD


Posts:1045


01/03/2018 9:29 AM  
Posted By KerryL1 on 01/03/2018 8:28 AM
Remind the rogue in writing that he may not reveal executive session matters to the membership.


If the matter involves alleged misconduct by the person (the so-called rogue), then she or he has a right to defend her- or himself before the Members and especially during campaign season. That the issue was discussed in exec session would then be irrelevant.
KerryL1
(California)

Posts:5388


01/03/2018 10:32 AM  
The rogue refuses to attend board meetings where his case could be discussed by the Board and himself. In addition, one of his, um, errors was to reveal executive session matters to non directors and someone else.

Some of this history, Augie, is in a different thread, I think.
AugustinD


Posts:1045


01/03/2018 11:38 AM  
Posted By KerryL1 on 01/03/2018 10:32 AM
The rogue refuses to attend board meetings where his case could be discussed by the Board and himself. In addition, one of his, um, errors was to reveal executive session matters to non directors and someone else.

Some of this history, Augie, is in a different thread, I think.


I agree the so-called rogue's refusal to attend meetings where his actions are on the agenda, and so where he certainly had a chance to defend himself, is to his detriment. So too is any release by him of bona fide confidential material.
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