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Subject: What do you do if a board member breaches board ethics and confidentuality?
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LouH1
(Michigan)

Posts:148


02/18/2021 6:20 PM  
We have a board member who has mailed unapproved minutes and sent it to all the co-owners with his complaint about a particular board member. Isn't this a censure issue? He also has in a meeting with co-owners, read a complaint by a co-owner against a board member (who was unaware of the complaint), naming all people involved. It embarassed the board member and also, I think violated confidentually and ethical behavior. What think you guy?
AnnaJ1
(Maryland)

Posts:50


02/18/2021 6:39 PM  
Wow what a childish jerk. I'm interested to hear responses on this too, as our board has an irrational, destructive member. Do you have a management company? If so, can they guide you? Do your bylaws state anything? I would think this is definitely appropriate for censure, but at the end of the a day censure is just words on paper. I wish I could help more.
SheliaH
(Indiana)

Posts:3824


02/19/2021 5:02 AM  
Yes, this warrants a censure - and a vote of no confidence by the board, followed by a request that he resign immediately. Keep in mind you can't kick him off - only the homeowners can vote him off, either through a regular board election or recall.

In the meantime, schedule an executive session and have the man explain himself. Then vote on the censure and note the actions (check your documents to see how that's addressed) and have the man explain himself. If he's a board officer, vote to remove him effective immediately and appoint someone else. Publish the censure in the next board meetings and write a letter to the association apologizing for the man's actions, reminding everyone on proper procedure and why it exists. Be sure to check your documents first to see if they mention executive sessions and/or board member discipline to ensure you're doing everything right.

Send a copy to the association attorney to CYA, as this sort of thing can and will get ugly, especially if the board member starts screaming about suing. The attorney could also reiterate that board meeting minutes reflect the official actions of the association and must be approved by the board - otherwise the board places the association at risk for major liability.

I didn't check what state you were in before writing, but the Davis-Stirling website has a great article on censures. Davis-Stirling is California's HOA legislation and the website is run by a HOA law firm. Even if you don't live in California, I find it has a lot of helpful information that could be adapted by other HOAs (after reviewing their own state law, of course). Here's the link - https://www.davis-stirling.com/HOME/Censuring-Directors#:~:text=A%20censure%20is%20a%20reprimand,against%20fellow%20directors%2C%20etc.)

If this board member doesn't resign, the rest of you should strive to remain professional and transparent in your actions, and keep the homeowners in the loop. This would also be a good time to establish a code of ethics for board members, adopt it via a resolution during a board meeting and publish that too. This will show everyone what the expectations are regarding board service, although you can't MAKE anyone sign a statement promising to comply. Here's a model code of ethics from the Community Association Institute (CAI) you might want to adapt: https://www.caionline.org/HomeownerLeaders/ResourcesforHomeownerLeaders/G2G_ModelCodeEthics.pdf

TimB4
(Virginia)

Posts:17439


02/19/2021 5:22 AM  
Reality is, there is little the Board can do.

Censure - so what. It really does nothing but places in the minutes displeasure with the actions.

You could remove them from their officer position (if any), providing someone else is willing to do that job.
This may or may not inspire the individual to resign from the board. Note: removing someone from an officer position (secretary for example) does not remove them from the board. They are still a director, has a right to vote at all board meetings and stay informed of everything all other board members are aware of.


ChrisE8


Posts:0


02/19/2021 9:52 AM  
Posted By LouH1 on 02/18/2021 6:20 PM
We have a board member who has mailed unapproved minutes and sent it to all the co-owners with his complaint about a particular board member. Isn't this a censure issue? He also has in a meeting with co-owners, read a complaint by a co-owner against a board member (who was unaware of the complaint), naming all people involved. It embarassed the board member and also, I think violated confidentually and ethical behavior. What think you guy?




You could remove the board member, but usually only owners can do that; board members cannot. But you could work to have owners do that.

What good would censure do?
KellyM3
(North Carolina)

Posts:1642


02/19/2021 10:56 AM  
Good rule of thumb about HOA boards....nothing in the meetings, even executive sessions, could be considered as "confidential" even if the topic should be confidential.

The sending of unapproved minutes of a previous meeting? If they're largely accurate and reflect the deliberations accurately, then big deal.

The public sending of a personal complaint against a fellow colleague on the board? Low class and not worth a mention. Even the reply back to interested dues payers is "this is low class and not worth discussion."

Forget a censure. You're wasting your time. The better question to ask the director facing censure is why they took the action they took as it screams "I WANT ATTENTION." Then, the board member needs to understand just how much they relegated their future ideas to the agenda scrap heap. And you don't have to tell them that in an open setting.
SheliaH
(Indiana)

Posts:3824


02/19/2021 11:25 AM  
It's true censures won't guarantee a board member will stop behaving badly, but part of the reason it should be considered is to send a message to the entire board, not just the jackass. Certain behaviors such as distributing unapproved minutes could expose the association to liability issues. And if you have D & O insurance, the carrier might not look kindly on a board that DIDN'T call out a board member for irresponsible behavior.

As a practical matter, if you don't take steps to stop this kind of behavior early, it will continue - and next time, this board member may do something even more offensive that could result in legal action against the association. Not to mention how difficult it may become to work with someone who's a jackass. You don't have to be BFFs with everyone on the board, but you should be mature enough to find a way to work together because the primary reason all of you are there is to run the association in an efficient and effective manner. How can you do that when you have a board member or two who aren't even mature enough to talk out a personality clash with another board member?

This isn't grade school - board members are running a non-profit corporation and managing hundreds of thousands of dollars to maintain the common areas and provide services as stated in the documents. You may not do everything perfectly (no one's perfect), but everyone should expect and demand that people entrusted with the board member position will behave in a responsible manner and not throw hissy fits because they didn't learn in kindergarten how to play well with others. You're right, nothing the board does should be a surprise to the members, but some things there could be sensitive issues that arise that should be handled with care. If you're not sure how to do that, talk to the association attorney. This is why executive sessions exist- and why they should be RARE.

In the meantime, I for one don't have time or patience with people who engage in BS behavior because they want attention - focus on the topic at hand and if you can't or refuse to, get the hell off the board and go do something else.

AnnaJ1
(Maryland)

Posts:50


02/19/2021 11:59 AM  
Posted By SheliaH on 02/19/2021 11:25 AM
It's true censures won't guarantee a board member will stop behaving badly, but part of the reason it should be considered is to send a message to the entire board, not just the jackass. Certain behaviors such as distributing unapproved minutes could expose the association to liability issues. And if you have D & O insurance, the carrier might not look kindly on a board that DIDN'T call out a board member for irresponsible behavior.

As a practical matter, if you don't take steps to stop this kind of behavior early, it will continue - and next time, this board member may do something even more offensive that could result in legal action against the association. Not to mention how difficult it may become to work with someone who's a jackass. You don't have to be BFFs with everyone on the board, but you should be mature enough to find a way to work together because the primary reason all of you are there is to run the association in an efficient and effective manner. How can you do that when you have a board member or two who aren't even mature enough to talk out a personality clash with another board member?

This isn't grade school - board members are running a non-profit corporation and managing hundreds of thousands of dollars to maintain the common areas and provide services as stated in the documents. You may not do everything perfectly (no one's perfect), but everyone should expect and demand that people entrusted with the board member position will behave in a responsible manner and not throw hissy fits because they didn't learn in kindergarten how to play well with others. You're right, nothing the board does should be a surprise to the members, but some things there could be sensitive issues that arise that should be handled with care. If you're not sure how to do that, talk to the association attorney. This is why executive sessions exist- and why they should be RARE.

In the meantime, I for one don't have time or patience with people who engage in BS behavior because they want attention - focus on the topic at hand and if you can't or refuse to, get the hell off the board and go do something else.




Ansolutely!
MikeM48
(California)

Posts:4


02/19/2021 12:23 PM  
I am not sure ethics policies that are not part of an HOA'S governing documents are legally-binding.

Some HOA's may have governing document language that allow any homeowner to request and receive minutes within a certain time period-- say 30 days, whether they are approved or not.
SheliaH
(Indiana)

Posts:3824


02/19/2021 1:34 PM  
good point about the documents and request for minutes- Lou, you may want to check yours for this language.

As for ethics policies, I think the documents could include language that would specify certain behaviors that could get a board member from the board. Not so much violating an ethics policy, but things like embezzlement, conflicts of interest where there's evidence the board member did profit from dome sort of monetary action MIGHT be useful. Of course there would have to be specific processes and appeal rights, and homeowners would probably have to approve any changes to the bylaws that would add this (bylaws usually dictate how the association is run, such as owner rights to association records and powers if the board of directors.

If any board wants to go down this road, they must run this by the association attorney and association master insurance. In the meantime, the minutes issue might be addressed by bringing the draft to the board meeting and reviewing it for corrections at that time. If any are made, you can make a motion to approve with corrections and go from there.

When I was on the board, that's what we did and everyone who attended the meeting has to sign off on the minutes after they were approved. The minutes with the signatures and corrections were placed in the permanent file.

You could also type those minutes for neatness and attached the signed copy to that so people can see where the corrections were made.
MikeM48
(California)

Posts:4


02/19/2021 1:46 PM  
Perspective on COE:

https://www.latimes.com/business/la-fi-associations-ethics-codes-20160526-snap-story.html

and

https://dessaules.com/blog/2018/2/17/hoa-codes-of-conduct-and-why-they-are-unforceable

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