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Subject: President using HOA attorney without board discussion
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Author Messages
AliciaP1
(Colorado)

Posts:1


04/25/2021 9:36 PM  
Hey, I’m a board member on an HOA board in Colorado. The president of our board likes to direct questions to the HOA lawyer AND use the lawyer to write emails to members at his personal discretion without consulting with the rest of the board, this running up legal bills without consent or discussion. Is this legal? Can he do this? Does he need to consult with all board members before using the lawyer in any capacity?

CathyA3
(Ohio)

Posts:1888


04/26/2021 5:14 AM  
I think you know the answer. No, he can't do this, but in practice yes he can because the rest of the board won't put a stop to it. It's no different from any other situation in which a single board member confuses the office of President with that of Dictator.

So, what to do? Push back.

* The rest of the board has to tell him that he's exceeding his authority and to stop. No payments will be authorized without a board vote to approve (how is the lawyer even being paid - a President should not be able to cut checks or otherwise act as the Treasurer).

* When he doesn't stop, the rest of the board can vote to remove him from the office of President and appoint another director.

* When this still doesn't stop him, work to have him removed from the board altogether when his term ends. (This is easier than a recall election since directors serve at the pleasure of the homeowners and can be replaced with or without cause.)

All this assumes that your bylaws are similar to most other HOA's bylaws and that these steps are legal.

Having said that, it's common for a board to appoint one director to act as the point of contact with the association lawyer, so that much isn't surprising or wrong.
MichaelS56
(Minnesota)

Posts:181


04/26/2021 6:32 AM  
Cathy, what you said is what the rest of the Board should do, however, the President knows the other members well enough that they do not have the personality to take on the difficult steps to stop him. The Board treasurer could also contact the lawyers office by phone or by mail and indicate that the President of the Board is not authorized to interact with the lawyer. If a letter is sent to the lawyer, I would send the certified.
SheliaH
(Indiana)

Posts:3923


04/26/2021 7:13 AM  
The best you can do is make your case to at least insist that these contacts be pre-approved by the board. If you haven't had an executive session on this, board member conduct like this is warranted. The president should be made to explain why he's contacting the HOA attorney without authorization and why other board members aren't told what was discussed. Note the cost of these email responses, phone call responses, personal visits or whatever has jacked up the bill.

This might also warrant an appearance by the association attorney to elaborate on the contacts, but since that may also cost money, ask for an itemized statement of services to date and make sure EVERY board member gets a copy.

Then go around the table and ask everyone what they think should be done - sometimes people develop a backbone when they hear other people talk, and if they think this behavior is ok, they need to be man or woman enough to say so. One way to get them to talk - ask each how they'd respond if HOMEOWNERS (the ones who elected all of you) were to ask about these increasing legal bills.

Hopefully, this will prompt the president to change his tune. From this meeting, there should also be a board resolution reiterating how contact with the HOA attorney is supposed to work. You may mandate that any contact must be pre-approved by the entire board in an open meeting, the minutes should reflect the reason for the contact {you should be able to summarize this} and one person is designated to be the contact person (perhaps this should be turned over to the vice president). The board must also be copied on email traffic so there's no question as to who said what.
AugustinD


Posts:313


04/26/2021 7:24 AM  
Posted By MichaelS56 on 04/26/2021 6:32 AM
Cathy, what you said is what the rest of the Board should do, however, the President knows the other members well enough that they do not have the personality to take on the difficult steps to stop him.
I expect it's likely the other directors do not understand that the covenants and statutes state that the Board as a whole (granted sometimes by majority vote of the directors) makes decisions. Any one director, including the President-director, routinely making decisions by her- or himself, abetted by an ignorant manager or ignorant attorney, is acting ultra vires yada and breaking the law.

Ditto what CathyA3 and SheliaH advised.
CathyA3
(Ohio)

Posts:1888


04/26/2021 8:53 AM  
Posted By MichaelS56 on 04/26/2021 6:32 AM
Cathy, what you said is what the rest of the Board should do, however, the President knows the other members well enough that they do not have the personality to take on the difficult steps to stop him. The Board treasurer could also contact the lawyers office by phone or by mail and indicate that the President of the Board is not authorized to interact with the lawyer. If a letter is sent to the lawyer, I would send the certified.




You're right that the President has probably figured out that he won't get any pushback. However, sometimes a situation like this arises when you've got one board member doing all the work and the rest of them sitting like bumps on a log - if the one person doesn't do it, it doesn't happen. I don 't think that is what's going on in this case, though.

Regardless, the rest of the board needs to develop thick skins and get their acts together. Yes, this is difficult, and most states don't have an external authority that can fix this (aside from the courts via lawsuits). The rest of the board should understand that they're all accountable for board decisions, even if they didn't actually participate in making that decision - so it's in their own best interests to address this.
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