Dealing with Difficult Directors
Adams Stirling PLC
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  California's Leader in Community Association Law May 1, 2020
DEALING WITH DIFFICULT
DIRECTORS

Abusive Director. If a board member has multiple complaints from security gate staff for inappropriate interactions, yelling, in your face interactions, etc., and states he is acting as an owner and not a board member, how should this be addressed? Should the board proceed with a censure and address him as a board member regardless? -Christina B.

RESPONSE: Your board member is behaving badly and his actions create potential liability for the association. His statement that he is acting as a homeowner does not insulate the association. The fact remains, he is a board member abusing the staff. If a lawsuit is filed, the association will be named.

If you don't take action, it will appear you are condoning your director's bad behavior. A censure recorded in the minutes together with a request for his resignation will make it clear the board does not condone his behavior. If he refuses to resign and continues to behave badly, legal counsel should send a letter putting him on notice the association will seek a restraining order against him if he does not stop.

If your abusive director is the least bit rational, he will stop behaving badly. If not, you need to take steps to protect your employees from him and protect the association from liability.


Uncooperative Director. What about a board member who declines to sign documents and refuses to provide bank-required information to sign checks? How should the rest of the board deal with this one director? -Elizabeth M.

RESPONSE: Unless the person is an officer, he/she is not required to sign documents or checks. Some people are very risk-averse and don't want to sign anything. If your director shows up for meetings, reviews materials, participates, is respectful, and exhibits sound judgment, you are lucky--you have a good board member.

Mentally Unstable: We have a new board member who is mentally unstable. She is a known alcoholic and possible drug abuser. She comes in late, cannot follow the agenda, interrupts the board and displays some dementia. We had to terminate the meeting and leave our annual meeting. What can we do? -D.B.

RESPONSE: Give her fair warning if she does not behave, she will be censured and the board will ask for her resignation. You can't remove her for being an incompetent director, only the membership can do that. You should consider amending your bylaws to vacate a seat whenever a director misses a certain number of meetings (usually three consecutive or four in a 12-month period). If you amend your bylaws, take the opportunity to eliminate cumulative votingquorum requirements for the election of directors, proxies, write-in candidates and floor nominations, and add a provision for uncontested elections. We do this for our clients and it greatly simplifies their elections and reduces costs.


Girlfriend Making Decisions. A board member is allowing his girlfriend to make decisions on the building's rehab work. He said he added her to trust but we have not seen evidence of that. She states he gave her power of attorney so, therefore, she is an owner. Is this valid? -Bill J.

RESPONSE: No, none of it is valid. Your board member is exhibiting poor judgment. A power of attorney does not make his girlfriend an owner. Nor does making her a beneficiary in his trust. The board is in charge of the building's rehab, not his girlfriend.

 
VIRTUAL MEETING
ISSUES

Recording Meetings. I am loving the new paradigm of virtual meetings, as a manager, I’ve hosted about six Zoom meetings, everyone seems to like the convenience. The meetings are more efficient, you can mute everyone until the comment period, which makes meetings move along very quickly. Most of my boards will probably continue with these types of meetings even after COVID-19. -Ron R.

Technical Problems. Our last open board meeting was a disaster, it was a zoom meeting and 80% of the time the members and directors could not hear what was said. My 4-year old grandchild has zoom meetings with his school. If a 4-year old can do it, our board should be able to as well. -Finn M.

RESPONSE: To make virtual meetings work, boards sometimes need help with technical issues. They should find a good IT person and pay him/her to set up everything properly. It's worth the expense.


No Meetings. Our board president refuses to have a virtual meeting because of the state shelter order and claims the Corporations Code prohibits it. He says he will call a meeting when the shelter order is lifted. -Edward S.

RESPONSE: Your president is being short-sighted. Boards can and should hold virtual meetings. Associations all over the country are successfully holding them. The Corporations Code does not prohibit virtual meetings.

Virtual Meeting Notice. We now hold Zoom meetings. Do we need to change how we give notice of meetings and our agendas? -Jay M.

RESPONSE: Your agenda remains the same but your meeting notices must contain instructions on how members can access the meeting. In addition, you should include instructions for how your particular open forum will be handled so members know how to participate.


Deaf Attendee. If a deaf member wants to attend a Zoom meeting, how can she know what is being said? -Beverly G.

RESPONSE:
Maybe some of our video conference techie readers can tell us if there is a feature that puts subtitles on the screen in real time.
 
OPENING
RECREATIONAL FACILITIES

Denied Access. I would like to know the circumstances under which the board can deny my access to the common areas. -Tom B.

RESPONSE: Pandemics come to mind. Another instance is if you behave badly and the board suspends your privileges. I've suspended driving privileges in gated communities when someone (a 17-year-old, for example) repeatedly drives recklessly on their streets. I once suspended the privileges of Robert Durst (yes that Robert Durst, who is currently on trial for murder). For more information, see "Suspending Privileges."

Monitoring Violations. Last week the county relaxed rules governing pools. It now allows for one swimmer at a time. Our board is concerned it will be difficult to ensure everyone follows the rules. Can our board not adopt the new rule and leave our pools and hot tubs closed? -Don S.

RESPONSE: If you open your pool, you have two options: (i) post county regulations and trust everyone to behave responsibly or (ii) adopt county guidelines as emergency rules, which means you can enforce them with fines. Can you keep everything closed? Yes. Can you open the pool but keep your hot tub closed? Yes. Your board can decide what's best for your association.

Tracking County Changes. Below are changes in county restrictions adopted in the past two days:

Beaches. Even though many counties opened their beaches, Wednesday night Governor Newsom shut down all beaches in the state. Thursday morning he clarified that only Orange County beaches were closed. Because this seems to change from day to day, you will have to follow the news on this one.

NorCal Counties. Tulare, Mendocino, and Calaveras Counties were added to the chart. Sonoma County opened golf courses, but not for golfing. Yolo County classified more businesses as essential. Calaveras County issued new restrictions. Alameda, Contra Costa, Marin, San Francisco, San Mateo, and Santa Clara Counties all have new orders effective May 4. Links to the new orders were added to our chart. Once they officially go into effect, superseded orders will be deleted. The above counties all opened golf courses subject to restrictions. They also expanded their list of essential businesses. Some provided additional guidance on outdoor activities. Sacramento County has a new order going into effect May 1. Tennis, golf, hiking trails, parks, and dog parks are open pursuant to guidelines. BBQs are open to same-household use. The Bay Area is allowing construction again. We added FAQ links, since they provide more explanation than the orders.

SoCal Counties. Orange County does not have an order expressly addressing pools. The order that banned gatherings expired on March 31, and currently the county is following the state's shelter-in-place order, which does not address gatherings or pools. So we changed our chart from closed to "no guidance." The same is true for San Diego County. Its health order does not expressly close private pools. However, it does prohibit gatherings in indoor and outdoor spaces. We changed our chart from closed to "no guidance."
Riverside County continued its requirement of face coverings and social distancing through June 19, but let lapse its prohibition of gatherings and will rely upon the state’s stay-at-home order, which still requires residents to stay at home except for necessary functions.

County Chart. For a complete list of county restrictions and links to their orders, see County Orders as of 5-1-20. If we missed anything, please contact us.

 

Thank you so much for your newsletters!!!!!! -Myrna W.

For many years, I relied on your newsletter to help me with my board related duties. Although I have aged out of my board responsibilities, I continue to enjoy the wit and intelligence contained in your newsletter. Keep up the good work. -D.C.

I am an avid reader of your newsletter and love its content. -Daryl H.

Even though Marjorie Murray’s legislation seems woefully ill-conceived and poorly drafted, where were members of the legislature that voted for this new law? Aren’t many of the legislators attorneys? Shouldn’t they have foreseen the problems? And what about our lovely Governor? Shame on the members of the legislature who voted for this mess and the Governor for signing the bill. That’s where the real problem lies! Thank you for the outstanding newsletter. -David Z.

RESPONSE: Too often, legislators don't read bills. They follow the recommendations of others. Two years ago, Governor Brown recognized the bill was a train wreck and vetoed it. Marjorie Murray's Center for California Homeowner Association Law (CCHAL) sponsored the bill again last year. CAI's California Legislative Action Committee (CAI-CLAC) fought hard against it and came within one vote of defeating it. CLAC then went to Governor Newsom to veto the bill. Unfortunately, he signed it. We are now dealing with the expensive aftermath. At some point, I would like to see a bill introduced to rescind SB 323. If that happens, I will let everyone know.

Thank you for your newsletter. I find it very helpful. -Elinor G.

I LOVE this newsletter and continue to forward it to the board members and owners of three associations, just in case they haven't signed up. Family & friends are also receivers. Plus, I forward it to many real estate related, in other states. They can't believe I would still live in California!!! I love Mr. Adams humor, with the mask, and, for mentioning his mother in a previous release. -Leslie Q.

Thank you for a wonderful newsletter. -Alan E.

Will you be selling Adams Stirling masks? -Kathleen M.

RESPONSE: I hope not. I don't want Tammi going into business and leaving us. She's too valuable.


 
Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC
DISCLAIMER. Our newsletter provides commentary based on sketchy information we receive from readers. From time to time, we add a little humor. Some find it amusing. Others are appalled. Some readers are excited when they score free legal advice. Not so. Our newsletter provides commentary only, not legal advice. You need to pay real money for an attorney to review all the facts and give you a legal opinion. We do that too, but you have to actually hire us. It's okay, we're friendly. You can call us. Keep in mind we are corporate counsel to associations only.

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