Guest Matt Posted March 5, 2015 at 06:25 PM Report Share Posted March 5, 2015 at 06:25 PM Here's the situation. There is an HOA Board in a very small rural community. The Board is prepared to vote to permit logging trucks use their (HOA maintained) roads to remove a stand of dead trees. One Board member, who is the lone dissenting voice, has announced his intention to sue the Board in an effort to get an injunction to stop their actions if the Board moves forward. The Board intends to move forward and is in need of guidance. I do not have access to or have seen the bylaws. Specifically: 1) Can and should the Board remove the Board Member suing the Board on the basis of a conflict of interest or some other basis? 2) Assuming the Board cannot remove the Board member under the bylaws, how then can the Board dismiss to executive session to discuss the lawsuit without the Board Member suing the Board participating in the Executive session. Both general and specific guidance would be much appreciated. Link to comment Share on other sites More sharing options...
jstackpo Posted March 5, 2015 at 06:37 PM Report Share Posted March 5, 2015 at 06:37 PM 1) Only if the "conflict" (or "other basis") is clearly spelled out in the bylaws. AND, the Board has the authority (again in the bylaws) to remove someone. 'Fraid you will have to dig up a copy of those bylaws. Good luck! 2) 'Fraid not. Awkward as it might be, a Board member is entitled to be at, and participate in, all meetings of the Board. Strategy: go into Executive (secret) Session (majority vote, your friend cannot prevent that by himself). Then if your dissenting member later tells his lawyer what he, the member, learned in the secret meeting, you might have further grounds for discipline. See pp. 95ff. Link to comment Share on other sites More sharing options...
Josh Martin Posted March 5, 2015 at 06:52 PM Report Share Posted March 5, 2015 at 06:52 PM 1) Can and should the Board remove the Board Member suing the Board on the basis of a conflict of interest or some other basis? As to whether the board can remove the member, check your bylaws and see FAQ #20. Whether the board should remove the member is up to the board. Given the current situation, it may be prudent to seek legal counsel before pursuing disciplinary action.2) Assuming the Board cannot remove the Board member under the bylaws, how then can the Board dismiss to executive session to discuss the lawsuit without the Board Member suing the Board participating in the Executive session.It can't, unless the board member voluntarily agrees to leave. Link to comment Share on other sites More sharing options...
Richard Brown Posted March 5, 2015 at 06:52 PM Report Share Posted March 5, 2015 at 06:52 PM One Board member, who is the lone dissenting voice, has announced his intention to sue the Board in an effort to get an injunction to stop their actions if the Board moves forward. 1) Can and should the Board remove the Board Member suing the Board on the basis of a conflict of interest or some other basis? Disagreeing with the majority opinion does not strike me as a conflict of interest in the usual sense of the term. Disagreement on issues... even strong disagreement... is quite the norm in many organizations. Threatening to sue over the disagreement is rather unusual, and might cause others to be upset with the member. Whether that would be grounds for discipline, removal from office or expulsion depends on your bylaws and how you interpret them. I would keep in mind, though, that if the individual is willing to sue over the board granting someone permission to use the development's roads, he may be quite willing to sue over what he perceives as wrongful expulsion, removal from office, etc. I would also point out that even if he is removed from the board, he may well still have the right to sue as a member... just as any other member could do... over what he perceives as an illegal act by the board. Link to comment Share on other sites More sharing options...
Rev Ed Posted March 6, 2015 at 05:50 AM Report Share Posted March 6, 2015 at 05:50 AM Disagreeing with the majority opinion does not strike me as a conflict of interest in the usual sense of the term. Disagreement on issues... even strong disagreement... is quite the norm in many organizations. Threatening to sue over the disagreement is rather unusual, and might cause others to be upset with the member. Whether that would be grounds for discipline, removal from office or expulsion depends on your bylaws and how you interpret them. I would keep in mind, though, that if the individual is willing to sue over the board granting someone permission to use the development's roads, he may be quite willing to sue over what he perceives as wrongful expulsion, removal from office, etc. I would also point out that even if he is removed from the board, he may well still have the right to sue as a member... just as any other member could do... over what he perceives as an illegal act by the board. Richard, you beat me to it. It is certainly not a conflict of any kind to disagree with a majority vote. However, the lawsuit is questionable - but there is nothing RONR can do to prevent it. However, a lawyer will be able to provide a legal opinion about the issues at hand and most likely what the dissenting Board member may be allowed to legally do in this situation. The best answer(s) you are going to find right now are from a lawyer. Link to comment Share on other sites More sharing options...
Gary Novosielski Posted March 9, 2015 at 07:01 PM Report Share Posted March 9, 2015 at 07:01 PM This is something that might be covered by state statutes, but it's not covered in RONR. Link to comment Share on other sites More sharing options...
Dan Honemann Posted March 9, 2015 at 07:09 PM Report Share Posted March 9, 2015 at 07:09 PM The usual solution, as I recall, is to adopt a motion (majority vote required) referring the matter to a committee consisting of all members of the board except the one who has threatened to sue. Link to comment Share on other sites More sharing options...
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