You Can Lead a Horse to Water...

But you can’t make him drink.  A lot of the work I do for my association clients requires me to counsel boards to take actions different from the actions they’d taken in the past.  I advise them to enforce their covenants.  I make sure they treat owners and residents as equally as possible, regardless of gender, age, race, affiliation, or personality conflicts.  I work to dispel myths about owner’s rights and privacy.

In spite of it all, sometimes boards simply refuse to follow legal advice.  They allow personal agendas to control decisions that should be made with the association’s interests at heart.  They refuse to follow the covenants because they don’t seem “fair.”  They view bad acts by prior boards as justification for current malfeasance.

What these boards may not realize is their actions – or inaction, as the case may be – can lead to personal liability for the individual board members.  An individual member could sue the association, and its board members, for breaching their obligations to the other members.  A board member is a fiduciary to the other members of the association.  This means that board member must act with the highest care and loyalty in the interests of the entire association.

When a board member fails to act with this care and loyalty – for example, where the board member fails to properly disclose a potential conflict of interest, or sways the rest of the board into taking action to fulfill a personal grudge – that board member could wind up in court without the protections of the association’s insurance policies.  When a board member fails to accept the judgment of professional engineers, attorneys, accountants, and others in the field, he opens himself up to liability and harms his association.  

If you’re a board member, make sure that you investigate and ask questions.  If you don’t like the answers to those questions, ask for clarification, or seek a second opinion.  If you’re still not satisfied, consider whether your personal motivations are coloring your judgment, and then think about stepping down from the board.