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Subject: Board member conflict of interest
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Author Messages
KP1
(Colorado)

Posts:58


10/31/2018 11:17 AM  
Would it be a conflict of interest for a Board Member to be in charge of revising our Rules and Regulations while they have been served notice of their own violations of some of the Rules and Regulations and violations of the CCR's? Would it be a conflict of interest for same person to be in charge of all owners compliance with all governing docs? Specifically - both the Rules & Regulations and the CCR's state the no inoperable vehicle may be stored on the common or limited common elements. This Board member has left an inoperable vehicle (no tag, no registration and would not legally be allowed on City and County streets) parked on common premises for over a year w/o the other Board members requiring them to stop the violation. At the last meeting membership insisted that those owners not in compliance with the Governing docs be served non-compliance notices by the Board (Board was reluctant to do this) but thru pressure decision to enforce compliance of Docs finally happened. I confess I do not know what has happened since - whether non-compliant notices were sent and/or if we are in the next steps of fining individuals or a hearing has been set before the Board by this individual.

At our next meeting in a few days and roughly 4 weeks after this last meeting - the car remains, the compliance issue unresolved and this person is up for re-election.

I would like to address what I see as a conflict of interest and perhaps if this person is re-elected to the Presidency - is not allowed to rule on the violations of others, enforce violations of others or be able to vote on changes to the Rules and Regulations and certainly not be able to vote of their own non-compliance issues should it come before the board.

The issues which concern me are Conflict of Interest, Abuse of Authority and potential property value decline with derelict vehicle being allowed to remain.

What is the best and healthiest way to bring this subject up and keep it civil with the intent of doing what is most fair for all owners?
RichardP13
(California)

Posts:3107


10/31/2018 11:28 AM  
Posted By KP1 on 10/31/2018 11:17 AM
Would it be a conflict of interest for a Board Member to be in charge of revising our Rules and Regulations while they have been served notice of their own violations of some of the Rules and Regulations and violations of the CCR's? Would it be a conflict of interest for same person to be in charge of all owners compliance with all governing docs? Specifically - both the Rules & Regulations and the CCR's state the no inoperable vehicle may be stored on the common or limited common elements. This Board member has left an inoperable vehicle (no tag, no registration and would not legally be allowed on City and County streets) parked on common premises for over a year w/o the other Board members requiring them to stop the violation. At the last meeting membership insisted that those owners not in compliance with the Governing docs be served non-compliance notices by the Board (Board was reluctant to do this) but thru pressure decision to enforce compliance of Docs finally happened. I confess I do not know what has happened since - whether non-compliant notices were sent and/or if we are in the next steps of fining individuals or a hearing has been set before the Board by this individual.

At our next meeting in a few days and roughly 4 weeks after this last meeting - the car remains, the compliance issue unresolved and this person is up for re-election.

I would like to address what I see as a conflict of interest and perhaps if this person is re-elected to the Presidency - is not allowed to rule on the violations of others, enforce violations of others or be able to vote on changes to the Rules and Regulations and certainly not be able to vote of their own non-compliance issues should it come before the board.

The issues which concern me are Conflict of Interest, Abuse of Authority and potential property value decline with derelict vehicle being allowed to remain.

What is the best and healthiest way to bring this subject up and keep it civil with the intent of doing what is most fair for all owners?



IMO..Best course of action...If not a Board member, then run.

What is the old adage? Want something done, then you might have to do it yourself.
SheliaH
(Indiana)

Posts:2302


10/31/2018 12:33 PM  
I agree it is a conflict of interest for a board member to be in violation of revising the rules when he/she is currently out of compliance. It’s too bad this didn’t occur to the rest of the board when this person was appointed (or he/she volunteered and they said ok). I don’t expect people to be perfect, but if you’re talking about revising rules, it only makes sense that the people charged with making recommendations should already be in compliance. Otherwise it’s a bad look and virtually none of the recommendations can be taken seriously because these folks may be acting in their own interests.

Is this board member doing everything or is he/she part of a committee? If he/she is part of a committee, that’s only one vote and hopefully he could be outvoted on issues that affect him/her directly.

You didn’t say where this car is located – if it’s in the street, are they owned by the association or the city? If it’s the latter, you should be able to call the non-emergency number of the police department and ask them to investigate. Our community hired off duty police as our security officers and this is the main reason we began using them. We’ve also adopted city/county traffic/parking rules as our own, so if your car is sitting outside without plates and/or not operating, our officers can have it towed if the owner doesn’t fix it or put it somewhere where it can’t be seen (e.g. a garage).

That’s one option your board may consider – since inoperable vehicles are already illegal, let this person explain to the judge why this raggedy ride has been out in the open for everyone to see (not only is it ugly, it can also attract vermin).

If this car is on the common area, such as a parking lot, the board should have ordered the board member to either bring it into compliance or it will be towed at his/her expense – and there should be a deadline of a week because it’s already been a year.

Your real beef is with the entire board because this board member is only one person and one vote. They can easily outvote him/her – if they have the stomach to enforce the rules. In many ways, I understand the reluctance. People often run for the board yapping about how THEY will finally start enforcing the rules, but crumple like used toilet paper when people start howling, threatening to sue (whether they have a case or not) – and worse (we’ve seen too often how people resort to fists or gunfire these days when something or someone pisses them off)

As Richard said, if this board won’t enforce the rules, you and your neighbors have to vote them out and put in people who will –and one of them may have to be YOU. Should that happen, you and the new bunch will have to understand there will always be pushback when rule enforcement begins, but if they’re going to mean anything, you have to stand your ground and be fair and consistent. The first few months (and sometimes years) will be a roller coaster, but if you stick to it, people will soon find you mean business. It’s just a matter of the board having the will to press on and that’s a lot easier than it sounds

Which reminds me – since ALL homeowners are legally bound to follow the CCRs, they have to hold each other accountable, not just the board. What’s stopping YOU from talking to this board member about this car? You could start with talking to him/her privately and see what happens.

If that doesn't work, you'll need to go to the board and ask about the car directly – why is it still there and why hasn't the board done anything about it. You don't have to name names - everyone will know who you're talking about and this will put that board member on the spot. It's important you do this in a professional and civil manner, emphasizing that any revisions to the rules will mean squat if the board doesn't enforce what's already there.

You might also want to bring your neighbors along to listen to the proceedings and they can chime in. Maybe someone does need to tell this board to their face that if the rules aren’t enforced consistently holding EVERYONE accountable, they run the risk of being voted out or recalled.

That’s the best way to bring this up, but remember, speaking truth to power isn't easy. Don't expect this person to just sit there - when he/she starts sputtering, screaming, making excuses or whatever, you will need to stay calm and stick to the problem. Let everyone see that while the other person loses his/her mind in front of everyone. If you're having a disagreement with someone and he/she begins yapping about you instead of the argument, it's a pretty good indication he/she has nothing to say and can't contradict your augments like a grownup.
MarkM19
(Texas)

Posts:128


10/31/2018 1:34 PM  
The Golden Rule on any Board should be as follows.

Rules are made for everyone. You can not be a breaker of rules and a enforcer of rules. It is hypocritical and so obviously out of line. I like what Sheila said but I think I would speak about the car as if I did not know whos it was and hope someone else call him/her out publicly.
KP1
(Colorado)

Posts:58


10/31/2018 2:17 PM  
I have served on the Board before and actually did rejoin in July of this year specifically to address some of these issues. We've had zero meetings - including the Annual for a year and a half. It was my hope to start addressing issues and reestablish Board relations with our community. I spent the next few months being a thorn in the side - making sure we had monthly meetings, did monthly walk thru of the property to note maintenance issues and violations, encouraged formations of committees to address a back log of many issues, created and distributed a community survey which showed most owners had no faith or trust in our leadership. I asked specifically for us as a Board to comply with governing documents and enforce them and to make sure we did our fiduciary duty. I pointed out that we open ourselves to liability when we do not. Some board members in private agreed change was needed but in meetings would not, some board members chose to ignore me with no response and others just plain refused to comply with Governing docs. It feels very much to me that ranks have been closed and wall of protection installed. I resigned this month for 2 reasons - frustration/lost cause and not wishing to serve on a Board that willfully chooses to violate their duties and place the HOA at risk of liability by making these choices. I suppose I could have kept banging my head against the wall for longer but really did not see any health benefit in doing so.

The inoperable vehicle is parked on common HOA property in our private parking area. The owner (HOA President) has already admitted many months ago that it violates the Rules and Regulations, to both homeowners and Board members. Yet they continue to enforce other owners and other parking violations. I told the Board myself - that it is really a bad precedent for us (I was a Board member at the time) to allow this or for the Pres. to set this example. Deaf ears. If I had to zoom in on the problem it is loyalty to a person and not to a community. Personalities before principles. Exempting themselves at the expense of the community.

Another homeowner is violating both HOA R & R's and City and County ordinances with improper storage of propane tanks on limited common elements - those have been there for near a year as well. They are a fire/safety hazard - The Board again balked at enforcing compliance. They are still there and many homeowners keep asking why? Do some people get special privileges that others do not? This person is an old time resident and lives next door to the President. Meanwhile some of our newer homeowners are approached and verbally cited for violations and they wonder at a fair system.

Maybe bringing an attorney to one of our meetings to explain Fiduciary Duty and how not doing that exposes the entire community to lawsuits? I certainly have no wish to proceed legally - but I do fear if changes are not made that may be a path someone chooses to take. I wonder if our property manager could arrange to have an attorney present the facts?

I am not having difficulty speaking truth to power - my experience is that power prefers to be ignorant - and have/am trying it both ways - as a Board member and as a homeowner. So far neither works.

So I will try again at this next meeting by bringing up conflict of interest and see where that goes.
SueW6
(Michigan)

Posts:325


10/31/2018 2:35 PM  
What do you mean "in charge"?

If this person is on a committee, then he has one vote. The Rules and Regulations committee is advisory only - the board would vote on any suggestion or change.

Pick your battles. This violation has been going on for some time. The Board has been neglectful of its responsibility to address issues.

Maybe this is a police/ordinance/blight issue, anyway.

Point is, you had bigger fish to fry (no annual meetings?!!) in getting this HOA in order. Too bad you resigned.

BTW - please use paragraphs when stating issues. Too hard to read one long block of script. Thanks.
KP1
(Colorado)

Posts:58


10/31/2018 3:19 PM  
With regard to the "in charge" question. This person was tasked with revising the Rule and regulations in 2015. She submitted those revisions 2 months ago to the board for feedback and approval.

I would suggest to the Board that she be recused from voting on their approval or any votes regarding compliance issues until she has resolved her own non-compliance issues. I believe that would be appropriate.
ArtL1
(Florida)

Posts:119


10/31/2018 3:58 PM  
In Colorado, your statute of limitations on contract enforcement is 3 years. If an open violation like this is allowed to persist for 3 years without the HOA attempting to enforce the CC&Rs, then AFAIK, that particular rule becomes unenforceable.
GenoS
(Florida)

Posts:2466


11/01/2018 12:28 PM  
Posted By KP1 on 10/31/2018 11:17 AM
Would it be a conflict of interest for a Board Member to be in charge of revising our Rules and Regulations while they have been served notice of their own violations of some of the Rules and Regulations and violations of the CCR's? Would it be a conflict of interest for same person to be in charge of all owners compliance with all governing docs?

I say no. Hypocrisy isn't a conflict of interest. In Florida, at least, "conflict of interest" is specifically defined to be about financial interest. If people are working on updated rules and regulations it's not relevant whether they themselves are in compliance. What's releevant is that they also be subject to the same level of enforcement as everybody else. Directors have a duty to enforce the covenants and other rules and restrictions equally.
JohnC46
(South Carolina)

Posts:7820


11/01/2018 12:38 PM  
Posted By GenoS on 11/01/2018 12:28 PM
Posted By KP1 on 10/31/2018 11:17 AM
Would it be a conflict of interest for a Board Member to be in charge of revising our Rules and Regulations while they have been served notice of their own violations of some of the Rules and Regulations and violations of the CCR's? Would it be a conflict of interest for same person to be in charge of all owners compliance with all governing docs?

I say no. Hypocrisy isn't a conflict of interest. In Florida, at least, "conflict of interest" is specifically defined to be about financial interest. If people are working on updated rules and regulations it's not relevant whether they themselves are in compliance. What's releevant is that they also be subject to the same level of enforcement as everybody else. Directors have a duty to enforce the covenants and other rules and restrictions equally.




I agree.
KerryL1
(California)

Posts:5852


11/02/2018 5:55 PM  
Geno & John C. are absolutely right: there is no conflict of interest. To play RoyalPita a for a moment. Look up conflict of interest, KP. You're way off base.
CathyA3
(Ohio)

Posts:62


11/03/2018 7:08 AM  
Posted By JohnC46 on 11/01/2018 12:38 PM
Posted By GenoS on 11/01/2018 12:28 PM
Posted By KP1 on 10/31/2018 11:17 AM
Would it be a conflict of interest for a Board Member to be in charge of revising our Rules and Regulations while they have been served notice of their own violations of some of the Rules and Regulations and violations of the CCR's? Would it be a conflict of interest for same person to be in charge of all owners compliance with all governing docs?

I say no. Hypocrisy isn't a conflict of interest. In Florida, at least, "conflict of interest" is specifically defined to be about financial interest. If people are working on updated rules and regulations it's not relevant whether they themselves are in compliance. What's releevant is that they also be subject to the same level of enforcement as everybody else. Directors have a duty to enforce the covenants and other rules and restrictions equally.



I agree.




I was discussing this with our attorney recently and he explained it this way: General discussion of rules and regs = no conflict of interest. Board discussion of enforcement action against board member for specific violation = conflict of interest.

However, in my opinion, it's a good idea for board members to avoid the appearance of wrongdoing, even in cases where they are complying with the letter of the law. This is one of those cases. Enforcement is often difficult - why make things harder for yourself by getting a reputation for unfair dealing, deserved or not?
KerryL1
(California)

Posts:5852


11/03/2018 2:27 PM  
The only conflict of interest this prez would have is if she engaged in discussion or voting about her own violation, KP.

I'd campaign against her reelection by bring up this eyesore and telling voters she's not doing what's best for your HOA with that piece of junk. (Use better words.)

Meanwhile: WHY won't the board vote to discipline her?
RoyalP
(South Carolina)

Posts:65


11/10/2018 9:47 AM  
..... Hypocrisy isn't a conflict of interest. In Florida, at least, "conflict of interest" is specifically defined to be about financial interest. If people are working on updated rules and regulations it's not relevant whether they themselves are in compliance. What's releevant is that they also be subject to the same level of enforcement as everybody else. Directors have a duty to enforce the covenants and other rules and restrictions equally. .....


PERFECT
MarkM19
(Texas)

Posts:128


11/10/2018 10:34 AM  
RoyalP,
If you ignore the rules and avoid fines you are getting financial advantage. If you write rules that favor you and allow something that allows you to park a non operable vehicle onsite verses paying for storage offsite you are getting a financial gain.


It is a Conflict of Interest IMO
RoyalP
(South Carolina)

Posts:65


11/10/2018 10:41 AM  
A fine line ..................

Would the rule allow ONLY the 'maker' to park said vehicle(s) ?

or

Would the rule apply to all ?

Does the maker have more than 1 vote ?

however

I see your point,

perhaps a 'recuse' would have been in order ?

Even if not actually required.


? What damages, exactly, have YOU suffered ?

Case dismissed !
RoyalP
(South Carolina)

Posts:65


11/10/2018 10:44 AM  
George,

Feel free to reword and/or apply lubricant to the above wording.

but

The question of actual damages remains.

KerryL1
(California)

Posts:5852


11/10/2018 10:57 AM  
I stlll agree with RoyP despite Mark's reply.

Mark wrote: "If you ignore the rules and avoid fines you are getting financial advantage. " But it's the Board that isn't enforcing the documents who's at fault. As asked above, KP,: why doesn't the board discipline this violator?

And if it should muster the courage to do this, of course, the alleged violator should be recused from the discussion and from the vote on this topic.
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