Condo Media - January 2015 - 22

BAD APPLES

Generally, if there is
consensus among
the other board
members that it is
only one of their
number who is
"bad," it may be possible (and less disruptive to the community) to seek his
or her resignation.
22

CONDOMEDIA

"Bad" unit owners can make life miserable for their neighbors, as we have
discussed many times in the past, but
they aren't the only ones. A "bad" board
member can be just as troublesome, if not
worse than, a misbehaving unit owner.
Board members stand in a fiduciary role
- and owe duties of loyalty and care to the
association they serve. When a member
of the board goes "bad," the consequences
are often worse as result of these obligations. In addition, the board often has
access to confidential information and
association funds and also maintains a
degree of power over the enforcement of
the governing documents.
In this position, the potential for truly
"bad" acts - misappropriation of funds,
unauthorized and unlawful dissemination
of confidential information, selective
enforcement of rules and regulations - is
significant. On top of that, presumably
most board members have been elected by
earning the trust and confidence of their
neighbors and peers. A breach of this trust
not only creates resentment, it may create
liability and expense for the association
as well.
So how does one deal with "bad" board
members before they create real problems
for the community? Well, the first step is
to identify them. Throughout this article,
I've had the word "bad" in quotations.
That's because I was trying to stay with
the metaphor, but even though to me it
sounds juvenile to call a trustee "bad." It's
like something my 2-year-old daughter
might say for lack of a more descriptive or
colorful adjective.
Yet, the real reason I've highlighted the
term throughout is because the word "bad"
can mean many different things in the board
member context. A "bad" trustee may be
dishonest, self-dealing, reckless, belligerent, oppressive, apathetic, obdurate, or any
number of other things. In our experience,
we have had the good fortune of dealing with
mostly "good" trustees - those who assume
the often thankless position with genuine
interest, attention, and the community's
best interests at heart.
However, we have seen the opposite as
well: those who seek to serve for the wrong

reasons or who have abandoned the right reasons somewhere along the way. Boards must
be vigilant for these individuals, as their actions can taint the ownership's perception of
the entire board, in addition to causing actual
problems for the association.
STOP THE DECAY
If you have identified a "bad apple" in your
bunch, you have to decide how best to deal
with him or her. Occasionally, an honest
conversation - rather than confrontation
- behind closed doors about the offensive
behavior may help to right the ship. Depending on the nature of the bad actor's conduct,
however, more drastic measures may be
required.
Generally, if there is consensus among
the other board members that it is only
one of their number who is "bad," it may
be possible (and less disruptive to the
community) to seek his or her resignation.
As counsel, we have made demands upon
individuals "requesting" their resignations - lest the association explore more
aggressive methods to address their "bad"
actions. This can be a face-saving measure
for the individual in question, as well as a
more economic and expedient route for the
association.
If worse comes to worst, however, the
association may have to consider formal
removal of the "bad" member pursuant to
its governing documents. Most documents
- whether trusts or bylaws - provide a
mechanism for removing board members.
The best of these provisions allow for removal "with or without cause." Some provisions require a "due process" hearing before
the board or association prior to removal
and many require a vote of the ownership.
If you find yourself in a position where you
have to remove a board member, it is critical
to carefully consult the governing documents to ensure that you follow the correct
procedure. Assuming that you do abide by
the terms of the documents, the courts of
the Commonwealth of Massachusetts have
generally upheld removals as proper acts.
One final point comes up in the context
of small associations: duplex or triplex
style condominiums, where there are two
or three trustees and obtaining a "major-

Condo Media - January 2015

Table of Contents for the Digital Edition of Condo Media - January 2015