HOA Board Member Behaving Badly? Know How and When to Discipline

HOA Board Member Behaving Badly? Know How and When to Discipline

February 2013
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You may be surprised to learn that you and your fellow volunteers can be disciplined for your behavior as members of the board of directors of your homeowners association or condominium association. Here we explain when it's appropriate for boards to consider disciplining their fellow board members, along with the possible range of action they can take.

Boards are Good Police Officers

Though serving as an HOA board member is voluntary, it's a real commitment, and most board members treat it that way. "Boards do get involved and help police the activities of their fellow board members both within board meetings as well as when a rogue board member tries to take liberties without including the other board members in his actions," says Lori Burger, CPM, CCAM, CAM, senior vice president and director of Eugene Burger Management Corp., a Rohnert Park, Calif.–based company that manages about 20,000 condo and HOA units; Burger is also the 2013 secretary/treasurer of the Institute of Real Estate Management, a professional organization of property managers. "Boards take their jobs as board members very seriously and are pretty good overall in the area of self–policing."

Though there are few formal disciplinary actions boards can take to slap the hands of their fellow members, they do exist. Some states and governing documents have automatic sanctions for board members' improper behavior.

"I've seen some association documents that say if board members fail to attend a certain number of meetings, they're automatically removed from the board," says Matthew Zifrony, who advises homeowners and condo associations at Tripp Scott, a Ft. Lauderdale law firm, and who's also served as the president of a 3,000–home association. "That's a form of discipline. There are also statutes in Florida where if board members become delinquent on maintenance fees, they're automatically removed from the board. Those both provide a level of discipline. But the real action that can be taken against board members is being recalled or not being elected again if they run during the next election."

What about a board member whose behavior doesn't fall within those automatic penalty areas? Is there any recourse? "Another way to discipline board members involves the board deciding who the officers are," says Zifrony. "The board can vote to remove the president as president, the treasurer as treasurer, and so on. They can't remove them from the board altogether, but they can remove them from officer positions. They can also remove them from committees or reprimand them saying publicly in the minutes that they don't agree with what the board members are doing."

Some Board Members Need a Good Talking To

In some cases, board members may need remedial guidance. That can be done either publicly or privately.

"I've seen boards do this, and usually it involves privacy issues related to keeping information confidential," explains Shanne Ho, senior director of property management at Seabreeze Management Co. in Aliso Viejo, Calif., which oversees more than 100 associations. "It could be going outside the bounds of the board meeting and telling your significant other or other members of the community the discussions being held in executive session or giving an idea of the delinquency issues going on at the association. Privacy can be a big deal at associations."

Ho has seen boards take one of two tacks when a colleague has breached confidentiality. "It depends on how comfortable they are," she says. "I've seen board members simply take another board member aside and just bring the issue to their attention, or they've done that professionally in executive session so it's not in front of the community. I've also been in situations where boards have had to bring in their general counsel, whether in person or through a written opinion, to say, 'Hey, as a board, there are certain situations where things have to remain confidential…' Finally, I've also seen heated situations where board members blow up at each other in front of the community."

If the action happens at a meeting, should it be reflected in the minutes? Sure, though you should be careful to explain what took place. "Even if it's in executive session, I wouldn't necessarily see anything wrong with the minutes reflecting that the board discussed the conduct of a board member, not necessarily naming names," says Ho. "We've had board members wanting that in there to note that this has been brought up. They consider it like a personnel issue, so they want it addressed in the minutes."

Last Resort: Ask the Board Member to Step Down

If board members feel strongly that another member isn't behaving properly, there's also the option of asking the other board member to resign.

"We have this going on right now at a property," says Burger. "It's a board member who's difficult to get along with and who makes the board meetings very challenging to get through because she monopolizes time and criticizes. The board has decided to ask the board member to resign."

The catch? Though it can certainly ask for one, the board doesn't have any authority to demand a resignation. "These things are more voluntary, where the board sits down with a board member and says, 'This isn't working out. We need to ask that you step down and resign from the board,'" says Burger. "When the board member refuses, it helps to have board meeting policies, like rules on how long owners and board members can speak or stating that you'll follow Robert's Rules of Order. [See a Sample Board Meeting Policy.] Where boards get into these struggles and can't get a board member to resign, having those policies and sticking to them helps get around problems."

Ho also recommends adopting a board code of conduct. "Some professional organizations have created a board member code of conduct providing guidelines on how board members will conduct themselves," she says. "Not a lot of our clients have adopted them, but some of our larger clients do put that in place so it sets expectations for board members."

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