Reader Questions - Too Helpful Manager, A Dangerous Director

Dear Mr. Richardson,
I am a director of a large HOA. In our most recent board meeting the following came up in discussion:

1. Our manager is calling homeowners and asking they vote for the incumbents. Is this ethical? Doesn’t the manager represent us all and not just a few? This does seem biased.
2. Some of our board members have access to homeowner phone numbers and are calling residents asking them to vote for incumbents. When the other candidates asked for the same privilege at a recent board meeting, our manager informed them they were not privy to the phone numbers because they were not board members.

Is this fair?
KF, Santa Ana

Dear KF,

Managers should have no role in campaigning or helping any candidate. A manager (and the HOA attorney also) must remain completely neutral. HOA professionals usually have opinions on who would be a good director and who would not, but it is critical that we keep our opinions to ourselves. To do otherwise, and to campaign for a specific director (even if we think that person would be a fantastic director) is a breach of our ethical and fiduciary responsibilities.

Board members have under the Corporations Code unlimited access to HOA records, but that is when they use the information for corporate purposes. If they are using the information for their own personal gain, that is an abuse of their position and a conflict of interest. All candidates should have the same access to the membership.

Thanks for your question, and hope things clean up at your association soon.
Kelly

Dear Kelly,

We currently have directors who are the subject of a recall petition. One is certifiable, he has threatened our management company’s president verbally and physically. He in turn filed a police report. I’m afraid we won’t get enough votes for the recall and that these two will continue through December. I realize it’s only a couple of more months, but given the unstable and volatile nature of this particular Board member, I would like to know if there is another course of action that would ensure his departure from the Board, short of shooting him, which I understand is against the law?

JH, Redlands

Dear JH,

First, yes, shooting a neighbor is a very bad idea. Seriously though, if anyone in the community, director or otherwise, threatens violence, that is a crime. Directors, managers or homeowners should not be subjected to meetings or confrontations where violence is imminent. That is why we have police. Your HOA may need to consult with legal counsel regarding the legal options available to deal with this issue. If the director is disruptive or violent in meetings, ejection or even a restraining order might be necessary.

Removing a director from office is often difficult because it normally takes a membership vote. If your HOA uses cumulative voting, it is even harder. Unless the bylaws add other disqualifications, a board can only remove a director under three circumstances – (1) if the director has been convicted of a felony, (2) determined by a judge’s order to be of “unsound mind” or (3) determined by a court judgment or order to have violated the director’s statutory duties (Corporations Code Section 5221).

Also, boards at an open meeting may remove officers, but they are still directors.

Best,
Kelly

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®.