Can’t I Disagree?

board members h o a homefront Sep 23, 2013
Disagreement is to be expected when serving as a director of a common interest development. But the way it is viewed, and handled, can greatly affect the board’s effectiveness and cohesion.

Voting “no” is not disloyal

Volunteer directors are expected to think independently, and majority votes are just as binding as unanimous votes. There are some votes upon which the board should seek unanimity, because of the importance of the decision. However, trying to attain unanimity on all motions creates the impression that disagreement is bad, and discourages directors from voting their personal views.

The motion went against my views, now what?

After arguing a position, and the majority of the board votes against you, what is the next step? Even though you may think the board has made a mistake, your responsibility as a director is to support and carry out the corporation’s decision. The board is a team, and decides as a team. Think of it as a canoe, being paddled by five people (or however many directors you have). Before launching off across the lake the paddlers discuss at which landmark they will all paddle toward. If you prefer a different landmark, can you paddle off in the direction you prefer? That won’t help anyone. You won’t get to your goal, but you will create a lot of friction against your team mates (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. I frequently encounter directors who confuse their personal views with their fiduciary duty. I have seen people passionately defend their attempts to sabotage or overturn board decisions, invoking “fiduciary duty”. Your fiduciary duty is not to force the other directors to see it your way.

What if I cannot agree to support the board’s decision?

If you cannot agree to help paddle the canoe, then get out of the boat. Sabotaging or trying to overturn the board’s decision would be a violation of your duties as a director. 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.

Don’t I have free speech?

No, directors must preserve confidences and not publicly criticize the board’s decisions.

Fiduciary duty is not what you think it is, it is what the law says. One of the most basic fiduciary duties is the duty of loyalty. When the corporation acts (through board vote), a director working to undo that action is disloyal to the corporation. Many well-meaning people claim it is their “duty” to fight the corporation- that is your right, but not if you are part of the corporation as one of its directors.


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®.