QUESTION: We have a board member who never attends meetings. We asked him to stop running for election if he isn't willing to participate, but he has ignored this request and is guaranteed reelection because of the shortage of candidates. Can we remove him for non-attendance?
ANSWER: Missing an occasional meeting is not a problem but refusing to attend is another matter. Directors have a nondelegable duty to attend board meetings. By refusing to attend meetings, your no-show is in breach of his fiduciary duties. Under Corporations Code § 7231(a) "A director shall perform the duties of a director . . ." Under the Davis-Stirling Act, directors have a further duty to monitor the association's finances (Civ. Code § 5500). His failure to attend meetings means he is missing the treasurer's report, not reviewing financial records, and not asking questions about finances--a further breach of his fiduciary duties. A person who consents to being a director and then refuses to participate loses the protections of Civil Code § 5800. As such, the problem director may face personal liability if something happens.
Bylaw Amendment. To remove your problem director from the board, you need to amend your bylaws. As provided for in Corporations Code § 7151, the membership can (i) prescribe qualifications for directors, including meeting attendance, and (ii) give your board the power to declare vacant the seat of any director who fails to meet those qualifications.
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