Attorney report to Board, who can see it?

[Guest Cat]

The Board hired an attorney who apparently wrote a report and answered everything in writing.

One member of the Board received the report and allegedly shared this report with some non-Board members of the HOA.  

The backstory is that one household wanted to remove beach dunes in front of another household property because it was impeded their view. The people with the dune said they would not remove it and that that Board shouldn't do anything illegal. The person on the Board, who hired the attorney, is a friend of the people who want the dune removed. Presumably, (but this is only conjecture) he hired the attorney to figure out how to legally get them to remove the dunes. 

The member of the Board who received the report did provide a summary of the report at a Board meeting. He will not share the original report with all the Board members nor will he share it with the community. He says there is attorney-client privilege. 

I would like him to share it with the community, or at least the Beach committee, who is making recommendations on dunes. At the very least, I believed that he was obligation to share this information with all of the Board members. I also find it problematic if he shares this information with come households and not with others in the HOA. 

If HOA funds were spend to hire the attorney, what can I do about seeing this report? Or at least, can we force him to share the report with the other Board members?

It would not be such an issue for me, but this is a repeating pattern now, where one Board member hires and attorney with HOA funds and refuses to share the original information with the HOA or even all the other Board members, citing attorney-client privilege. What can I do about this?

 

[Atul Kapur]

Is the board authorizing this person to use HOA funds to hire an attorney for personal use? If not, why is the HOA paying the bills?

[Guest Cat]

That's the issue, he says he can do it because he is a Board member. I presume that he got the Board to vote that the attorney should be hired. The issue is that, similar to times in recent past, he won't share the information with the HOA, citing attorney-client privilege. But the HOA is the client. Furthermore, many people in this HOA are quite elderly and trusting. What do you recommend that I do? Would it be appropriate for me to send an email asking why the HOA is paying the bill if for personal use? I don't want them to discipline me in some way and prohibit me from participating in the future. Thank you. 

[Josh Martin]

On 1/23/2023 at 12:14 AM, Guest Cat said:

The Board hired an attorney who apparently wrote a report and answered everything in writing...

The member of the Board who received the report did provide a summary of the report at a Board meeting. He will not share the original report with all the Board members nor will he share it with the community. He says there is attorney-client privilege. 

I am puzzled by these statements as they seem to be in conflict. From the facts presented, it seems to me the HOA is the client, and the report should therefore be provided to all board members, at a minimum. It would be at the board's discretion whether to share the report outside of the board.

In the alternative, if an individual member hired the attorney, then I suppose he is free to share this information with the board (or not), but certainly the board might take legal advice relayed to them secondhand with a grain of salt. In such cases, the member should also be responsible for any associated costs.

It would seem prudent to have a different board member work with the attorneys hired by the board in the future, and to more clearly communicate the board's expectations ahead of time. One would imagine it was already understood that a report completed on the board's behalf must be shared with the board, but I suppose this needs to be spelled out for this board's members.

On 1/23/2023 at 12:14 AM, Guest Cat said:

I would like him to share it with the community, or at least the Beach committee, who is making recommendations on dunes. At the very least, I believed that he was obligation to share this information with all of the Board members. I also find it problematic if he shares this information with come households and not with others in the HOA. 

Based on the facts presented, I am inclined to agree that the member is at least obligated to share the information with the board. Whether the board wishes to share this report with the Beach Committee or with the community as a whole is at the board's discretion.

I also agree it is problematic that the member is sharing this report with persons outside of the board without the consent of the board.

On 1/23/2023 at 12:14 AM, Guest Cat said:

If HOA funds were spend to hire the attorney, what can I do about seeing this report? Or at least, can we force him to share the report with the other Board members?

It would not be such an issue for me, but this is a repeating pattern now, where one Board member hires and attorney with HOA funds and refuses to share the original information with the HOA or even all the other Board members, citing attorney-client privilege. What can I do about this?

It seems to me the board is free to adopt a motion ordering this report to be shared with all board members, since this report was completed on behalf of the HOA and with HOA funds. If the member refuses, the board may need to pursue disciplinary action and/or legal action.

I would also note that the board may wish to tighten up its financial procedures in order to put a stop to this practice of individual board members spending HOA funds on attorneys. In many societies, only certain officers (such as the Treasurer and President, for example) have authority or access to spend the association's funds. It seems such a rule may be beneficial for this society.

I can't imagine why this needs to be spelled out, but it seems it may also be prudent for the board to adopt a rule providing that reports produced on behalf of the board with HOA funds shall be shared with all board members.

(As a parliamentary matter, I suppose the association, at a meeting, could order that the report be shared with the full association. But I am not entirely certain that will be possible, since often HOA bylaws and/or applicable law pertaining to HOAs grant significant authority to the board in such matters.)

On 1/23/2023 at 1:17 AM, Guest Cat said:

That's the issue, he says he can do it because he is a Board member. I presume that he got the Board to vote that the attorney should be hired.

Generally, an individual board member does not have the authority to expend funds, let alone enter into contracts on behalf of the association. If it is indeed the case that the board authorized this person to hire an attorney on the board's behalf, then I suppose that's fine. But it seems to me the board should be hounding this person to at least share the report with other board members.

On 1/23/2023 at 1:17 AM, Guest Cat said:

What do you recommend that I do? Would it be appropriate for me to send an email asking why the HOA is paying the bill if for personal use?

Seems perfectly reasonable to me.

Edited January 23, 2023 at 01:49 PM by Josh Martin

[Guest Cat]

Thank you. I will send an email in as non-confrontational way as I can. To clarify some confusion, I would like to point out again that 5 members of the Board seem to be deciding everything and they don't want the document to be shared, even with the other Board members apparently. There are at least 2 members of the BOD, if not 4, who would want a copy of the report Board and these two members always support the membership at the meetings.

However, whenever there is a vote, they are out-voted every time by the 5 controlling BOD members. 

So I will send a letter...but it sounds like it would be impossible for these two BOD members to get a copy of the report, if the other 5 vote that only the individual who got the report should do with it what he wishes. 

I had thought that it was REQUIRED that all Board members get a copy at least, but it sounds like a vote of the BOD could prevent that. 

Also, this is not the first time they are doing this...that's why I care about it. Now, it is a pattern to use an attorney with Association funds and claiming that the representative has attorney-client privilege and does not have to share anything in writing. 

[Josh Martin]

On 1/23/2023 at 8:07 AM, Guest Cat said:

Thank you. I will send an email in as non-confrontational way as I can. To clarify some confusion, I would like to point out again that 5 members of the Board seem to be deciding everything and they don't want the document to be shared, even with the other Board members apparently. There are at least 2 members of the BOD, if not 4, who would want a copy of the report Board and these two members always support the membership at the meetings.

However, whenever there is a vote, they are out-voted every time by the 5 controlling BOD members. 

This is rather puzzling to me, but if the majority of the board prefers that the document not be shared with other board members, then I suppose the document will not be shared. That rather changes things. I was originally under the impression that there were a few rogue board members. If the members who do not wish to share the document are in the majority, that will make things much more difficult.

It ultimately seems like this problem will only be resolved by electing new board members.

On 1/23/2023 at 8:07 AM, Guest Cat said:

So I will send a letter...but it sounds like it would be impossible for these two BOD members to get a copy of the report, if the other 5 vote that only the individual who got the report should do with it what he wishes. 

I had thought that it was REQUIRED that all Board members get a copy at least, but it sounds like a vote of the BOD could prevent that. 

I do not think any rule in RONR requires that this report be shared with all members of the board. Even if such a rule existed, a majority of the entire membership of the board would be sufficient for the board to adopt a rule providing otherwise.

It may well be there is something in applicable law on this matter which would require the report to be shared, but that is beyond the scope of RONR and this forum.

[Gary Novosielski]

On 1/23/2023 at 2:17 AM, Guest Cat said:

That's the issue, he says he can do it because he is a Board member. I presume that he got the Board to vote that the attorney should be hired.

A board member as an individual has surprisingly few powers except to vote in board meetings. 

If the board hired the attorney, then the board is the client, not the member. So the board should see the report.

If the board voted to pay the attorney bill for one member, they can do that, but only by adopting a motion.  If the member hired an attorney and then got the board to pay for it, while refusing to share the information, well, good for that member, but in my view, the board got played.

In any event, this report can't be considered binding upon anyone, especially if its contents are not revealed.  This amounts to something like the double-secret suspension in Animal House

[Josh Martin]

On 1/25/2023 at 12:48 AM, Gary Novosielski said:

A board member as an individual has surprisingly few powers except to vote in board meetings. 

If the board hired the attorney, then the board is the client, not the member. So the board should see the report.

The OP has now provided additional information suggesting that a majority of the board does not wish to have the report shared with other board members. Do you think that information changes anything?

On 1/23/2023 at 8:07 AM, Guest Cat said:

To clarify some confusion, I would like to point out again that 5 members of the Board seem to be deciding everything and they don't want the document to be shared, even with the other Board members apparently.

 

[Gary Novosielski]

On 1/25/2023 at 8:08 AM, Josh Martin said:

The OP has now provided additional information suggesting that a majority of the board does not wish to have the report shared with other board members. Do you think that information changes anything?

Not really.  I don't think that a majority of the board can vote to deny the minority the opportunity to see information to which "the board" is, of right, entitled. For example, a meeting is not properly called if only a bare majority of the board was notified.

What's next, reports of committees to only some of the board?  Approval of minutes with some members not allowed to see the draft?  Double-secret points of order?

[Josh Martin]

On 1/25/2023 at 11:46 AM, Gary Novosielski said:

Not really.  I don't think that a majority of the board can vote to deny the minority the opportunity to see information to which "the board" is, of right, entitled.

What parliamentary rule provides that all board members are entitled to this information by right?

On 1/25/2023 at 11:46 AM, Gary Novosielski said:

What's next, reports of committees to only some of the board?  Approval of minutes with some members not allowed to see the draft?

There are specific parliamentary rules which provide that all members have access to the minutes and reports of committees.

[Gary Novosielski]

On 1/25/2023 at 12:51 PM, Josh Martin said:

There are specific parliamentary rules which provide that all members have access to the minutes and reports of committees.

Are there really?  And what about annual audit reports?  Is the report of an accountant different in kind from the report of an attorney or other outside professional?  Presuming that these reports will potentially affect the course of business, it is absurd to think that members can proceed on the basis of no information. (Governmental examples notwithstanding.)

In my experience, if members seek to keep the contents of an attorney's report secret from other members it is because the opinions if released would support the position of the latter to the detriment of the former, i.e., content-based suppression.

[Josh Martin]

On 1/25/2023 at 12:03 PM, Gary Novosielski said:

Are there really?

I'm not sure if this is a serious question, but the rules on this matter are found in RONR (12th ed.) 47:33(8), 47:35-36.

"To maintain record book(s) in which the bylaws, special rules of order, standing rules, and minutes are entered, with any amendments to these documents properly recorded, and to have the current record book(s) on hand at every meeting." RONR (12th ed.) 47:33(8)

"When written reports are received from boards or committees, the secretary records on them the date they were received and what further action was taken on them, and preserves them among his records. It is not necessary for an assembly to vote that a board or committee report be “placed on file,” as that is done without a vote.

Any member has a right to examine these reports and the record book(s) referred to in 47:33(8), including the minutes of an executive session, at a reasonable time and place, but this privilege must not be abused to the annoyance of the secretary. Members are free to share their contents with others, except for any content protected by the secrecy of an executive session that has not been lifted (see 9:26). The same principles apply to records kept by boards and committees, these being accessible to members of the boards or committees (see also 49:17–19)." RONR (12th ed.) 47:35-36

On 1/25/2023 at 12:03 PM, Gary Novosielski said:

And what about annual audit reports?

Yes, there is a rule providing that members have a right to this information, even if the report is completed by outside professionals rather than a committee, because the report is subject to approval. (If the report is completed by a committee, it is also covered by 47:36.)

"When any paper is laid before the assembly for action, it is a right of every member that it be read once; and, if there is any debate or amendment, that it be read again before members are asked to vote on it." RONR (12th ed.) 33:21

"After the treasurer has made his report to the assembly (and after any detailed report presented by the chairman of the auditing committee, if it is needed), the chair states the question on adopting the auditors' report." RONR (12th ed.) 48:25

On 1/25/2023 at 12:03 PM, Gary Novosielski said:

Is the report of an accountant different in kind from the report of an attorney or other outside professional? 

The important difference relates to the fact that an annual audit report is a paper laid before the assembly for action, while this report (to the best of my knowledge) is not.

On 1/25/2023 at 12:03 PM, Gary Novosielski said:

Presuming that these reports will potentially affect the course of business, it is absurd to think that members can proceed on the basis of no information. (Governmental examples notwithstanding.)

In my experience, if members seek to keep the contents of an attorney's report secret from other members it is because the opinions if released would support the position of the latter to the detriment of the former, i.e., content-based suppression.

I have no disagreement with any of this. I quite agree that sharing such information with all board members is certainly a best practice and that refusing to share such information is troubling. Nonetheless, I am not aware of any parliamentary rule providing that board members have a right to access all reports completed on behalf of the organization which "will potentially affect the course of business."

It may well be that there is something in the organization's rules or applicable law on this matter which will take precedence. But if RONR is all that is controlling, I am not aware of any rule which would force the board to share the report with all board members, notwithstanding the board's wishes on this matter.

Edited January 25, 2023 at 06:26 PM by Josh Martin

[Caryn Ann Harlos]

I have no citation to offer Mr. Martin, but this seems (this isn't against you, I think you are right there is no express RONR provision) but I think there is an implied on in the actual office of being a board member.  If the board pays for something in order to properly do their duties, it is the absolute duty of all board members to be adequately informed, and that would include access to professional opinions that were paid for the society they are leadership of.

[Josh Martin]

On 1/25/2023 at 2:37 PM, Caryn Ann Harlos said:

I have no citation to offer Mr. Martin, but this seems (this isn't against you, I think you are right there is no express RONR provision) but I think there is an implied on in the actual office of being a board member.  If the board pays for something in order to properly do their duties, it is the absolute duty of all board members to be adequately informed, and that would include access to professional opinions that were paid for the society they are leadership of.

I have no disagreement with this, I am just not certain this right is found in RONR. I expect such a right may well be implied (or even explicit) in legal provisions relating to various types of organizations, but that is a legal question, not a parliamentary one. I would normally advise that the organization seek legal advice on this matter, but there seem to be some complications with that suggestion in the unusual circumstances in this post. But certainly it may be prudent for the OP to do some research on such questions. (Indeed, if the OP is still around, I would note that a quick Google search for "rights of board members to access information" seems to bring up some relevant articles on this matter.)

Edited January 25, 2023 at 08:56 PM by Josh Martin

[Caryn Ann Harlos]

I am suggesting it is implied in the roles of board members and that it doesn't need to be spelled out like the fact that the meeting cannot be conducted in Dothraki doesn't need to be spelled out.  This reminds me of a situation in my organization where we had a subunit that was actually claiming that giving notice didn't mean anyone had to actually reasonably see it - their Bylaws allowed notice to be posted on Facebook group which they then did and then buried the notice in pages and pages of memes.  And actually implied that notice would have been valid if it were white text on a white background wanting to know where RONR said it couldn't.  Some things are just sense.

Edited January 25, 2023 at 08:57 PM by Caryn Ann Harlos

[Josh Martin]

On 1/25/2023 at 2:56 PM, Caryn Ann Harlos said:

I am suggesting it is implied in the roles of board members and that it doesn't need to be spelled out like the fact that the meeting cannot be conducted in Dothraki doesn't need to be spelled out.  This reminds me of a situation in my organization where we had a subunit that was actually claiming that giving notice didn't mean anyone had to actually reasonably see it - their Bylaws allowed notice to be posted on Facebook group which they then did and then buried the notice in pages and pages of memes.  And actually implied that notice would have been valid if it were white text on a white background wanting to know where RONR said it couldn't.  Some things are just sense.

I maintain my view that nothing in RONR implies that individual board members have a right to have "access to professional opinions that were paid for by the society they are leadership of," notwithstanding the board's decision in this matter. But I think it is quite likely that such a right will be implied (or even explicit) in applicable law.

I have no disagreement with your comments concerning notice.

Edited January 25, 2023 at 09:05 PM by Josh Martin

[Rob Elsman]

The board can order the possessing member to physically hand over the report to the secretary of the board by some reasonable date with a clear understanding that the failure to do so will cause the board to recommend to the general membership assembly that appropriate disciplinary and legal actions be taken to recover the converted property and punish the offender.

[Josh Martin]

On 1/25/2023 at 3:13 PM, Rob Elsman said:

The board can order the possessing member to physically hand over the report to the secretary of the board by some reasonable date with a clear understanding that the failure to do so will cause the board to recommend to the general membership assembly that appropriate disciplinary and legal actions be taken to recover the converted property and punish the offender.

Yes, I don't think anyone disagrees with this, but apparently the issue is that the board does not want to do this.

On 1/23/2023 at 8:07 AM, Guest Cat said:

Thank you. I will send an email in as non-confrontational way as I can. To clarify some confusion, I would like to point out again that 5 members of the Board seem to be deciding everything and they don't want the document to be shared, even with the other Board members apparently. There are at least 2 members of the BOD, if not 4, who would want a copy of the report Board and these two members always support the membership at the meetings.

 

[Rob Elsman]

Since the society's money presumably paid for the services of the attorney, I would think that any member of the general membership assembly could move much the same thing in a meeting of the general membership assembly.

[Richard Brown]

On 1/25/2023 at 3:13 PM, Rob Elsman said:

The board can order the possessing member to physically hand over the report to the secretary of the board by some reasonable date with a clear understanding that the failure to do so will cause the board to recommend to the general membership assembly that appropriate disciplinary and legal actions be taken to recover the converted property and punish the offender.

The problem, though, is that a majority of the board members apparently do not want the attorneys report to be seen by the other board members, Or at least not by the member who is wanting to see it.

[Richard Brown]

I agree with both Mr. Martin and Miss Harlos. I agree with Mr. Martin that there is nothing in RONR which says explicitly but all board members are entitled to see a report from the board’s  attorney, but I agree with Miss Harlos that the right most likely  exists, possibly in law.  I also believe that any board members who take action to prohibit the report from being released to other board members could be subject to removal from office  and/or disciplinary action from the membership. 

[Gary Novosielski]

On 1/25/2023 at 1:24 PM, Josh Martin said:

The important difference relates to the fact that an annual audit report is a paper laid before the assembly for action, while this report (to the best of my knowledge) is not.

Well, I think that's the core of the question.  I'm asserting that if the board retains an attorney to formulate an opinion on some legal scenario, it will almost certainly be supplied in writing, and when it is, then surely it should either be laid before the assembly, or supplied to all members (e.g. when members receive a "packet" prior to meetings).  

The same would be true for an architect's or engineer's report, or that of virtually any professional or other consultant retained by the board to produce some work product.  I cannot think of a situation where the board sought to have some report compiled, but then shared with only certain members.  It might be different if the professional was privately retained by one member, but even then if the board was asked to rely upon something in the report in arriving at a decision, that can't very well take place if the report is not shared with the entire board.

[Tomm]

On 1/25/2023 at 10:46 AM, Gary Novosielski said:

Not really.  I don't think that a majority of the board can vote to deny the minority the opportunity to see information to which "the board" is, of right, entitled. For example, a meeting is not properly called if only a bare majority of the board was notified.

Just curious but I'm wondering why the motion asking whether or not the information should be shared with the entire board couldn't have been called out of order?

I think about the rule that states that if not all members of a board were included in the call of a meeting, then nothing acted on in that meeting is valid. It just seems that excluding only certain board members, who in fact authorized the hiring of the lawyer is inflicting a sort of censure or punishment?

I can understand that if the decision to hire a lawyer was done by an executive committee within the board then perhaps only those members should be privy to the information but when the decision was made by the entire board I would think any motion to deprive those members from the report would be out of order! 

[Josh Martin]

On 1/29/2023 at 4:14 PM, Tomm said:

Just curious but I'm wondering why the motion asking whether or not the information should be shared with the entire board couldn't have been called out of order?

I think about the rule that states that if not all members of a board were included in the call of a meeting, then nothing acted on in that meeting is valid. It just seems that excluding only certain board members, who in fact authorized the hiring of the lawyer is inflicting a sort of censure or punishment?

I can understand that if the decision to hire a lawyer was done by an executive committee within the board then perhaps only those members should be privy to the information but when the decision was made by the entire board I would think any motion to deprive those members from the report would be out of order! 

I think this discussion of a motion to "deny" sharing the report with the board is a bit of a distraction. The current situation is that the report has not been shared with the board, and the board member who has access to the report appears to have no intention of sharing the report, so making a motion to prevent sharing the report does not appear to serve any useful purpose, since that would simply continue the status quo. Rather, a motion should be made to order that the report be shared with other board members.

My view on this matter remains that nothing in RONR implies that individual board members have a right to have "access to professional opinions that were paid for by the society they are leadership of," notwithstanding the board's decision in this matter. But I think it is quite likely that such a right will be implied (or even explicit) in applicable law, and I am inclined to think such rules are not procedural in nature. If this is correct, then I do not think a Point of Order is the proper way to resolve this matter. Rather, a motion should be made and adopted to order the report to be shared with all board members.

Others have taken the view that there is a procedural right to a report of this nature. If this is correct, then I suppose the appropriate course of action is to request that the report be shared with all board members and, if this request is denied, follow up with a Point of Order and Appeal.

Either way, I imagine this will ultimately need to be resolved by appealing to a higher authority - either the general membership or the courts.

Edited January 29, 2023 at 11:16 PM by Josh Martin

[Caryn Ann Harlos]

On 1/29/2023 at 6:15 PM, Josh Martin said:

 

Others have taken the view that there is a procedural right to a report of this nature. If this is correct, then I suppose the appropriate course of action is to request that the report be shared with all board members and, if this request is denied, follow up with a Point of Order and Appeal.

 

Sorry I was away serving as convention parliamentarian, that is the position I ultimately take.