Censure, noun. An official condemnation, reprimand, or expression of adverse criticism, usually by a legislative or other formal body, of the conduct of one of its members or of someone whose behavior it monitors. Webster's New World Law Dictionary, Wiley Publishing, Inc., Hoboken, New Jersey.
Purpose of a Censure
A censure is the reprimand of a director for misconduct. A censure can be imposed immediately by motion and vote of the directors if, for example, if the bad behavior occurs in a board meeting. In other matters where a censure may be appropriate, a noticed hearing can be called. In either case, the censure is recorded in the minutes. The minutes should reflect the reason for the censure.
Examples of Bad Behavior. Behavior worthy of censure includes, but is not limited to:
- disruption of meetings (shouting, use of profanity, personal attacks against fellow directors)
- breach of confidences
- interference with association operations
- breach of fiduciary duties
- improper behavior toward association vendors or employees
- undisclosed conflicts of interest
Investigating Allegations
If an ethics violation is blatant and undisputed, the board can meet in executive session to discuss an appropriate course of action. Otherwise, the board can appoint an executive committee to investigate alleged violations. Once the committee has reviewed the evidence, met with the person (if possible), and conferred with the association’s legal counsel, it can present its findings and recommendations to the board for appropriate action. When a board member is caught in an ethics violation, the board may take any or all of the following actions:
Immediate Censures
In the case where a director is disrupting the meeting by interrupting other directors, the censure can be imposed immediately. "[i]n any case of an offense against the assembly occurring in a meeting, there is no need for a formal trial provided that any penalty is imposed promptly after the breach, since the witnesses are all present and make up the body that is to determine the penalty." RONR (12th ed.) 61:13. NOTE: Even though Robert's Rules calls censure a penalty, the courts do not. As noted below, a censure is not a disciplinary action.
Censure is a Form of Free Speech, Not a Disciplinary Action
While expressing strong disapproval of a director's behavior, a censure does not remove a director from the board or impair the director's ability to attend meetings, make and second motions, or vote on motions (unless there is reason for recusing the director from a particular vote).
U.S. Supreme Court. Houston Community College System (CSS) board member David Wilson had a history of criticizing fellow directors and filing lawsuits that cost CSS more than $270,000 in legal fees. As a result, the Board censured Wilson and barred him from holding officer positions on the Board or receiving travel reimbursements. After the board publicly censured Wilson for his behavior at a 2018 meeting, he sought damages against CSS and fellow directors for mental anguish, punitive damages, and attorney’s fees, claiming the censure violated his First Amendment right to free speech. In a 2022 unanimous decision, the U.S. Supreme Court ruled against Wilson. The Court wrote that,
Elected representatives are expected to shoulder a degree of criticism about their public service from their constituents and their peers—and to continue exercising their free speech rights when the criticism comes. Second, the only adverse action at issue before the Court is itself a form of speech from Mr. Wilson’s colleagues that concerns the conduct of public office. The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy, but it cannot be used as a weapon to silence other representatives seeking to do the same. The censure at issue before us was a form of speech by elected representatives concerning the public conduct of another elected representative. Everyone involved was an equal member of the same deliberative body. The censure did not prevent Mr. Wilson from doing his job, it did not deny him any privilege of office... It involves a censure of one member of an elected body by other members of the same body. It does not involve expulsion, exclusion, or any other form of punishment. (Hous. Cmty. Coll. Sys. v. Wilson (2022) 595 U.S. 468, 479, 482; emphasis added.)
The court also noted that censure dates back to colonial times, and long-established precedents affirmed the right of public assemblies to censure their members. "[A]s many examples show, Congress has censured Members not only for objectionable speech directed at fellow Members but also for comments to the media, public remarks disclosing confidential information, and conduct or speech thought damaging to the Nation. Censures have also proven common at the state and local level." (Id. at 469.)
The Accused Director is Allowed to Vote
The Davis-Stirling Act clearly defines issues considered conflicts of interest, which preclude a director from voting--a censure is not one of them. (Civ. Code § 5350(b),) Because a censure is not a disciplinary action, nor does it involve a conflict of interest, the accused director can attend the meeting and vote on the matter. RONR (12th ed.) 45:5.
The director who is the subject of a censure is interested in the outcome, just as he/she is in the election of officers. For example, even though interested in the outcome of a vote for officers, a director nominated to be president can vote on the issue. The same is true when it comes to a censure.
Accordingly, in a motion to censure a director, the other directors cannot force the person to recuse him/herself from the discussion or the vote. If that were the case, one director could accuse the other four directors of something, force them to recuse themselves, and then vote to censure the four directors.
If a board has five directors, and all five attend the meeting, at least three of the directors must vote to approve the censure; otherwise, it fails. NOTE: if the president is the subject of the censure, he/she must turn the meeting over to another officer to conduct the meeting until the matter has been resolved. RONR (12th ed.) 47:10. As noted above, the president attends the meeting, participates in the discussion, and votes on the motion.
Censures are Recorded in the Minutes
If done in an open meeting, the censure is recorded in the meeting minutes and becomes a public record for the membership's review. If it occurs in executive session, the minutes are not open for review. Still, the action can be reported in the executive session summary recorded in the next open meeting minutes. (Civ. Code § 4935(e).)
Possible Additional Actions
Removal from Office. If the errant director is an officer (President, Vice-President, Treasurer, Secretary, etc.), he/she can be removed from office by fellow directors since officers are appointed by and serve at the pleasure of the board. Removal as an office is not a disciplinary action requiring a noticed hearing since it is not the removal of a privilege. A director's appointment to an office is the imposition of additional duties, which the director accepts. Those duties can be shifted to another director at any time for cause or no cause at all.
Removal from the Board. In addition to censure, a board can request a misbehaving director's resignation. However, the director can refuse. If he/she refuses, the board's ability to remove a director is limited. This is also true for the courts. Courts can remove directors from office, but only for specific reasons established by statute. The membership, however, can remove a director with or without cause using a recall election.
Recommendation. Boards should adopt an ethics policy for directors, committee members, and managers.
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