Business Corporation Law Versus Conflicts of Interest How Both Impact Boards

There is a natural inclination in business to work with those whom you know and trust. Relying on relationships that have developed over time is just a common-sense way to ensure a fair deal from a competent vendor who will perform their job with minimal fuss. But, when an individual board member stands to profit in any way from hiring a particular vendor, and fails to disclose that relationship, then you’re talking about a potential conflict of interest, which is decidedly less kosher.

Individual states have assorted rules and regulations designed to prevent self-dealing in co-op, condo and HOA settings, and to ensure that association business stays on the up-and-up for the benefit of every owner or shareholder, rather than specific individuals. In New York, for example, there is the Business Corporation Law (BCL), under which most cooperatives in the state were created. New additions to the BCL went into effect on January 1st of this year, and as such, it’s worth taking another look at the law, similar legislation in other states, and conflict of interest in general. 

Nor-Eastern

In New England, where co-ops are a rare commodity, the law tends to be less specific.

“Our Condominium Statute (Chapter 183A) does entitle unit owners to make appointments at the locations at which association records are kept, and to view said records, including any contracts with outside vendors,” says Gary M. Daddario, a partner with the law firm of Winer & Bennett in Tyngsboro, Massachusetts. “That said, the statute does not prohibit self-dealing. Oddly enough, on that subject, it’s not uncommon to see language in an association’s governing documents that specifically allows  for self-dealing. In New Hampshire, recent amendments to its Condominium Act (R.S.A. 356-B) at least require certain disclosures to the community in the event that a property manager hired by the association has an interest in a contract that the association enters into with a vendor.

“Self-dealing typically occurs when a board member happens to own or be employed by a company that offers a service or product needed by the association,” Daddario continues. “The instinctive thought process is that the familiarity will result in the association getting the best deal, but the reality is that whether they get the best price or not, the association could end up in a difficult situation. If the project doesn’t go well, or the work isn’t done properly, it will be much more difficult and awkward to address than with a vendor who is at arm’s length. Not to mention that some folks are just naturally inclined to believe that there must have been kickbacks, or other sketchy behavior involved.”

When unit owners have to address suspected nefarious activity in-house, they have a few options, according to Daddario. “For starters, they can replace the board at the next election. If things are more urgent, they can seek removal of one or more board members pursuant to the removal provision in their governing documents. The most serious recourse would be for the unit owners to seek relief in a legal claim against the board, which is problematic as they would be, in certain respects, suing themselves, as members of the organization, and would likely bear the expense in some way.”

Meanwhile, in the Big Apple

In response to the BCL changes, Richard Klein and Emil Samman, partners at New York City law firm Romer Debbas LLP, sent out a packet to their co-op and condo board members advising them on how the law will continue to affect their buildings and associations going forth. For a primer, a portion of that memo is excerpted below:

For years, section 713(a) of the BCL has provided that if a director of a board has a substantial financial interest in a contract or transaction between a contractor or vendor and the board, this interest must be disclosed to the board. In such a situation, that director cannot vote on that contract or transaction and must recuse him/herself from any deliberations on the matter.

Further, Section 713(b) provides that if the contract or transaction was entered into without such a disclosure from the interested board member, the board may void the contract or transaction unless it can be established that the contract was fair and reasonable at the time it was authorized by the board.

Effective as of January 1, 2018, the new addition to the BCL has imposed two new requirements on cooperative and condominium boards of directors/managers when dealing with contracts or transactions that would fall into the category mentioned above. 

First, Section 727 establishes a requirement that cooperatives and condominiums must give each board member a copy of BCL Section 713 at least once a year. What is interesting is that as the law is currently written, it would seem to apply to condominiums, despite the fact that most condominiums do not typically incorporate under the BCL, or even under the Not-For Profit Corporation Law. So while it is unclear how this new law would apply to condominiums, apparently the New York State legislature is working on a clarification so that the disclosure requirement will clearly apply to condominiums. 

The second requirement is that, at least once a year, an annual report must be sent to all shareholders, signed by each and every director, that lists all contracts or transactions that were voted upon by the board that involved an interested director. This report must include the following information: (i) information on the recipient and the amount and the purpose of the contract; (ii) a record of the meetings of the directors including attendance and how each director voted; and (iii) the date of the vote and the date that contract/transaction became valid.

The board must prepare this report without exception. Even if there were no transactions involving an interested director, then the report must state that “no actions taken by the board were subject to the annual report required pursuant to Section 727 of the Business Corporation Law.

The Big Apple, Continued

“Generally, cooperatives are formed under and governed by the BCL, while condominiums are formed under and governed by Article 9-B of the New York Real Property Law (commonly known as the Condominium Act), and homeowners’ associations are formed under and governed by the New York Not-For-Profit Corporation Law,” explains Stephen M. Lasser, Managing Partner with Lasser Law Group in New York City. “The BCL and NFPCL are similar in that they both are mostly corporate governance statutes and detail the protocol for election of the members of boards by the owners of the cooperative or homeowners’ association, and the procedures that the elected members of the boards must follow. On the other hand, the Condo Act only provides basic corporate governance standards for condominium boards and, as a result, the governance of condominiums relies more heavily on the specifics of each condominium’s bylaws.”

Before getting lost in the weeds parsing the differences between these statutes, it’s worth noting that, as Lasser points out, co-ops, condos, and HOAs function quite similarly on a board level, and New York courts have adopted the same judicial standard of review for all three: the business judgment rule.

“It would be hard to overstate the importance of the BCL, as any dispute between owners and board will likely eventually be evaluated thereunder,” Lasser says. “The business judgment rule provides that, as long as a board acts for a legitimate corporate purpose, within its authority, and in good faith, a court will defer to and uphold its business decision. Despite this deferential standard, a court will look deeper into a board’s decision if an aggrieved owner can demonstrate that the board acted outside its authority, in bad faith, or in a way that did not legitimately further a corporate purpose.”

In the Land of Lincoln

In Illinois, both the General Not for Profit Corporation Act (IL-GNFPCA) and the Condominium Property Act (ICPA) offer guidance pertaining to conflicts of interest, according to attorney Sima Kirsch of the Law Office of Sima L. Kirsch in Chicago.

Section 108.60 of the former, for example, “considers a conflict of interest to arise when a director is directly or indirectly a party to a transaction,” says Kirsch, while section 18(a) (16) of the latter “prohibits a board from entering into a contract with a board member or corporation in which the board member or their immediate family has a 25 percent or larger interest, unless two conditions are met: the board must notify unit owners of the intent to enter into the contract within 20 days after the decision is made, and the unit owners must be afforded an opportunity to file a petition and vote to approve or disapprove the contract.

“Generally, if a director has a ‘personal interest’ in a matter of concern to the association, they should recuse themselves – although doing so is a rare occurrence,” Kirsch adds. “Therefore, the board must be vigilant and request that the director – even with the protective measures of 18(a) (16) of the Act and 108.60 of the GNFPCA – not participate in the vote on the issue at hand – which includes deliberation.”

Should that fail, Kirsch suggests that the group alleging a conflict put a petition in writing and send it by certified mail to the board requesting a special meeting to have the board member in question recuse themselves. Barring that, the aggrieved are left with mediation – should the association’s declaration have a provision that calls for it – or filing suit. 

“At the core of the conflict of interest issues is the general principle of Illinois law that the ‘duties imposed upon a director of the corporation as a fiduciary require him to manage the corporation with undivided and unqualified loyalty, and prohibit him from profiting personally at corporate expense or permitting his private interests to clash with those of the corporation,’ further that, ‘… a director who has a personal interest in a subject under consideration is disqualified to vote on the matter and may not be counted for the purposes of making a quorum,’” Kirsch explains.

When conflicts of interest arise, the GNFPCA, the ICPA, case law pertaining to the specific topic, or some combination of the three should provide a remedy. “Many times, it only takes the filing of the lawsuit to resolve the problem, or the first appearance before the court,” notes Kirsch. “Also, owners should be aware that, if they were not advised or did not know of the conflict, than the burden is on the board to offer evidence that the transaction was fair and not detrimental to the association.”

There are still issues to be ironed out here – among them the degree to which someone can be involved with a particular vendor before it constitutes a conflict of interest, and the specific consequences for self-dealing – but it’s clear that the issue is being taken seriously, not only in New York but across the country. The spirit of cooperative living depends on transparency, and on a board abiding its fiduciary duty.        

Mike Odenthal is a staff writer/reporter for New England Condominium. 

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