QUESTION: A homeowner keeps sending letters to board members' homes and every letter says it is “confidential to the board” and the board can’t share it with our management company. Does this homeowner have a right to demand that her communications (which ought to go to the manager) be kept private?
ANSWER: If the board decides the information in the letter needs to be shared with management, it can do so. When carrying out their duties, directors must balance the general welfare of the community against the interests of the individual. (Cohen v. Kite Hill.) That might mean disclosing the information.
Legal Counsel. The same is true with the association's legal counsel. If a director shares something with the attorney and tells him/her not to share it with the other directors, the attorney is not obligated to keep it confidential. As corporate counsel to the association, an attorney does not represent individual directors or owners. An association's legal counsel represents the association as a corporate entity.
In representing an organization, a member [attorney] shall conform his or her representation to the concept that the client is the organization itself, acting through its highest authorized officer, employee, body, or constituent overseeing the particular engagement. (State Bar Rules of Professional Conduct; Rule 3-600(A).)
When a director starts a conversation with "I have something confidential to tell you that cannot be shared with the other directors," I have to stop them and explain my obligations to the corporation may require that I share it with other directors. At that point, the director can decide whether to proceed.
Misconduct. Similarly for boards, if the owner's letters allege misconduct by the management company, the board has an obligation to investigate the claims. The investigation may involve talking to the management company about the allegations.
Nut-Job? If the owner is a known nut-job (yes, they exist), it makes it difficult for boards to evaluate claims. Even loose cannons occasionally hit a target. Boards need to review each letter to see if there is any substance buried in all the craziness. If it's nothing more than an obsession with a particular issue that has already been investigated but gets repeated endlessly, a letter from the association's legal counsel to the overwrought owner may be warranted.
Recommendation: The owner should be told (in writing) that the board will not keep her letters confidential if the directors feel the information and its source should be disclosed. You can tell her that all letters dealing with routine matters will automatically be sent to the management company.
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