But I Disagree

In our culture, disagreement is mishandled more than ever before. However, disagreement is to be expected between directors of common interest developments (aka “HOAs”), and the way it is understood and handled can either enhance or harm the association community and its governance.

Voting “no” is not disloyal.  Volunteer directors are expected to think independently and use their best judgment on board decisions and not just rubber stamp their colleague’s opinions. With varying backgrounds and viewpoints, different votes can be expected, as everyone tries their best for the HOA.

Unanimity is NOT required. Majority votes are as binding as unanimous votes. There are some decisions on which unanimity is important because of the importance of the decision, in which the membership needs to see a united board.  However, trying to attain unanimity on everything creates the impression that disagreement is bad and discourages directors from voting their personal views.

Disagreement is not a rejection of you. Don’t take disagreement personally. Contrary to our current political and social climate, prove that you can take disagreement gracefully and without offense.

Instead of declaring, ask. The moment one hears disagreement, the first impulse is to declare one’s rejection of that disagreement. However, consider asking one to explain their position further. It’s just possible you may learn something that causes you to question your position. Asking instead of declaring shows respect to your board colleague. To paraphrase John Lennon, give agreement a chance.

Knowing when to say “when. Once everyone has said their opinion on a motion and explained why, call for the question. When the majority speaks, move on to the next agenda item.

The board decided wrongly, now what?  After arguing your position, and a board majority voted against you, what is the next step? Your responsibility as a director is to support and carry out the corporation’s decision – it’s now your decision also. The board decides as a team. Think of a canoe being paddled by the board.  Before launching off across the lake the paddlers discuss the landmark they will all paddle toward. If you prefer a different landmark, can you paddle off in the direction you prefer instead? Your attempt to do so will frustrate your teammates and probably also turn the boat over. Support the team or get ready to swim.

The board is making a big mistake. Don’t I have a duty to take this to the homeowners and seek a reversal of the decision?  In short, no, your duty is quite the opposite.  Directors frequently confuse their personal views with their fiduciary duty, passionately defending their attempts to sabotage or overturn board decisions, invoking “fiduciary duty”. Your loyalty is to the corporation and to its decision. Your fiduciary duty is not to force the other directors to see it your way. Fiduciary duty is not what you think it is, it is what the law says. 

What if I cannot support the board’s decision?  If the board is so wrongly headed that you cannot abide by its decision, then resign and leave the board.  If you are no longer a director, you are no longer bound by the duty to support the decision, and then can say what you wish, so long as you do not disclose executive session information.

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.