REMOVE OR NOT - ROGUE BOARD MEMBER

QUESTION: A member of our board is not a team player – to say the least. He regularly bad mouths decisions with which he disagrees, encourages owners to complain about the decisions and even to remove the trustees who supported them. One board member thinks we should vote to remove him. Is that an option?

ANSWER: No. If this “rogue” trustee is an officer, a majority of the trustees could vote to remove him from that position.

But you can’t typically vote to remove him from the board unless the condominium documents give the board that authority. Most association documents outline a formal removal process requiring a vote of the owners that you would have to follow. And while that is an option, it is not the first one you should consider.

Start instead by explaining the “duty of loyalty” trustees owe the board and the community. That duty requires trustees to accept board decisions as final and to support publicly even the decisions they have opposed.

If this board member can’t accept that fundamental principle of association governance, he should resign. If the board president or other trustees have already delivered that message, then it should come next from the board’s attorney in a sternly worded letter that also explains the removal option and the board’s willingness to pursue it. Sometimes the threat of removal is enough to persuade a rogue to change his behavior or resign.

Removal is a last resort, however, and an undesirable one, because it will require embroiling owners in a public and potentially divisive battle. Even if the trustee is ultimately recalled, the bitter feelings will no doubt linger.

If the board member’s term is ending, it would be better to wait for the annual election (assuming the wait is not too long) and either try to persuade him not to run for re-election or try to persuade owners to elect someone else.

But before initiating a vote to recall the trustee or campaigning against him, the board should consider what is motivating his behavior.

Does he have a personal axe to grind; is he just seeking attention? Or does he have a good reason for questioning the board’s decisions? You should consider the board’s behavior as well as his. What if this rogue is right and the rest of the board is wrong? It’s not likely, but it is a question you should ask and a possibility you should consider.

If you have questions about board behavior, please contact your MEEB attorney directly or reach us at law@meeb.com.