By Joel W. Meskin, Esq., CIRMS, CCAL Fellow, MLIS, McGowan Program Administrators
Volunteer board members are often baffled and incredulous when someone challenges or complains about a decision that they have made, a rule that they have been changed, or a special assessment that they have issued. I have touched in one way or another between five and six thousand claims and/or lawsuits against community Associations and their volunteer board members. As I travel around the country, people ask me what I have been able to distill from all these claims. Without skipping a beat, I respond by telling them that "ignorance is not bliss"!
The "ignorance" I refer to is twofold. First, unit owners do not read the governing documents they have agreed to comply with prior to purchasing their home in a common interest association. In most cases, these unit owners probably do not read the governing documents until they have an issue with the board, the association or their neighbors.
Practice Pointer 1: read the governing documents before you buy; ignorance of the governing documents is not a defense and an association member is presumed to have read the documents he or she has agreed to when they purchased their unit.
Second, the volunteer board members turn their volunteer board position into something beyond its purpose and their authority. This is further exacerbated by the fact that these volunteer board members are often the same unit owners that have not read the governing documents.
Practice Pointer 2: Each association member who wants to join the board should be required to confirm that he or she has read the governing documents before agreeing to become a board member.
What comes to mind each time this twofold dilemma comes up is a pearl of wisdom my father used to share with me. He would say "why do people never have time to do things right in the first place, but always have time to fix them"?
Practice Pointer 3: Each board should have an annual board training, even those who have been on the board. The value of an annual training far outweighs the cost, if any, as well as the effort. Both items will lead to both monetary and time savings when the board knows how to operate the board. The National CAI has great resources as well as on demand video courses on training. There is no excuse for not taking the time to prepare for a board position.
I tell boards and managers that in the normal course a board meeting should not take more than an hour. Yes, certain issues create exceptions, but that should in fact be an "exception." In response, I often hear "yah, right." The key is for board members to understand their obligation, responsibility and treat the management of the association as the business it is.
The board is a body comprised of individuals that is charged to manage the association pursuant to the by-laws and relevant statutes. The board is a body that makes decisions and policies and delegates to the individual who will carry out the delegated matter. When a board member exits the properly noticed board meeting, they have NO authority to act in their capacity as a board member except pursuant to the delegated authority expressly given them by the board during a properly noticed board meeting, or proper consent to act without a meeting. Remember, each board member has "one" vote whether he or she is also an officer of the association such as the president, Vice President or other.
Most delegated tasks by the board are given to the community association manager if there is one, or employees. Sometimes, there is no CAM or employee, and the action is delegated to a volunteer board member or other association member volunteer. In that case, the board member is carrying out the delegated action as a "volunteer" and not in his or her capacity as a board member.
Practice Pointer 4: Remember, a board member is not an employee, and apathy is not a defense. If the board member says I have to do it, because no one else will. However, if no one else will, there is a deeper issue that must be addressed, because again the "volunteer board member or "other volunteer" is not an employee. If no one will step up, the board should hire a management company or an employee. If the board is not willing to do that, then the board should go to court and seek a receiver which will end up costing the board and the association the money they did not otherwise want to spend. At the end of the day, the board is charged with protecting the association's assets and must take the steps to do so.
In addition to understanding the role as a board member, the following are additional practice pointers that will help simplify and shorten a board meeting and mitigate claims.
- The board members must open, read and prepare questions, if any, on the issues to be addressed on the agenda. The single biggest waste of time in board meetings are board members who come unprepared and spend time getting up to speed during the meeting.
- Adopt a form of Roberts Rules of Order and stick to them. Even if the board are close friends and the use of rules seems awkward, the day a rogue unit owner or someone not playing with a full deck shows up, having in place a consistent set of rules will be worth its weight in gold. If rule are first used with respect to a specific individual, the door to discriminatory application of rules is opened. These rules should include a limited time for speaking by unit owners at a board meeting.
- Have a prepared agenda and stick to the agenda. If there are items that are not on the agenda, they should be tabled for another meeting.
- Do not tolerate a lack of civility or an individual who insists on disrupting a meeting. Do not engage that individual and adjourn the meeting to discuss further action with counsel. Counsel may need to seek a court order. A court may require a security guard and put the cost on the disrupter.
- Just because someone asks a question does not mean an answer must be given. There may be questions out of order or otherwise inappropriate. This is why an established set of rules are warranted.
- Whenever possible, even if an open meeting is not required by the governing documents or statute, have an open meeting to avoid any appearance of secrecy or conspiracy.
- Prepare a short video regarding "life in our community." This can identify the governing documents, identify how the association is managed and who is eligible for the board and rules they may be unique to this association or to life in a common interest development.
Understanding the board's duties and obligations and making sure unit owners receive, read and ask questions about governing documents is the best risk management tool the association can use.