The Problem: Our condo board does not always meet the quorum required to make decisions at board meetings.
The Answer: Your board definitely should not make major decisions – increasing common area fees or approving a major renovation project, for
example – without a quorum. However, you can deal with emergencies and make the day-to-day decisions required to operate the community outside of an official meeting. When that is necessary, it is a good practice to ratify the decision at a future meeting when the quorum requirement is met.
Some association bylaws specify that boards can act without a quorum in an emergency. If your bylaws don’t contain that provision, the board might consider asking owners to approve an amendment including it, eliminating any question about whether an emergency decision was authorized.
If the lack of a quorum is a chronic problem rather than an occasional one, the board should try to identify any issues that are creating attendance obstacles. Perhaps there are different days or times that would be more convenient for chronically absent board members.
If the problem isn’t the timing of the board meetings but the behavior of the board members, the other trustees should confront them. Regular attendance should be a requirement for board members. Those who can’t or won’t fulfill their obligations should be encouraged to resign. If they refuse, the board should consider using the formal process outlined in the association’s bylaws to remove them.
Even if the board has a quorum, the absence of one or more members can result in tie votes that leave the board deadlocked on important issues. Some boards deal with this problem formally, by adopting an arbitration or mediation requirement; others resolve tie votes less formally, by drawing straws or rolling dice. The best strategy is for board members to craft a compromise resolving their impasse. Although compromise seems to have gone out of fashion in recent times, it remains a desirable solution, if not always an easily achievable one.
The Problem: 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?
The 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.
A partner in the Braintree firm of Marcus Errico Emmer & Brooks P.C., Mark concentrates his practice on transactional and condominium law. He advises condominium associations and association managers on all matters affecting condominium communities, including: governance issues, rules enforcement, lien enforcement, asset management, casualty loss claims, document amendments, land acquisition and development rights, election and transition procedures, contracts and general liability issues. Mark can