Ideally, the board members of condominiums, co-ops, and HOAs are conscientious, level-headed folks committed to doing the job they were elected to do, treating everyone fairly and equitably, and not using their position to push a personal agenda, settle scores, or stroke their own ego. The vast majority of boards and individual trustees do live up to that standard, but occasionally, they don’t—and when that happens, it’s a big problem. 

Whether it’s a trustee who steamrolls their colleagues and mistreats staff members, refuses to hold meetings and elections, or engages in self-serving conflicts of interest, toxic board behavior impacts the entire community, leading to everything from poor morale to costly, acrimonious litigation. 

That’s why fellow board members and residents alike need to know what they can do to rein these bad apples in (or vote them out) and hopefully minimize the damage they can cause.  

Bad Apples 

First, it’s important to understand the difference between behavior that’s just rude or unpleasant, versus behavior that’s legally actionable. Talking over people at meetings is obnoxious—but it’s not illegal. Not holding meetings at all? That’s a much bigger problem, but both warrant intervention. 

 “A ‘bad’ board member can present a real, serious problem for a community association,” says Frank A. Lombardi of Lombardi Law Group in Lincoln, Rhode Island. “Board members stand in a fiduciary role, and owe duties of loyalty and care to the associations they serve. They often have access to confidential information and association funds, and also maintain a degree of power over the enforcement of the governing documents. In this position, the potential for truly ‘bad’ acts—misappropriation of funds, unlawful dissemination of confidential information, selective enforcement of rules, etc.—is significant.” 

“Having a member of the board who is difficult to deal with doesn’t have a legal solution—unless your state’s condominium statute or your condominium’s own governing documents have a provision that addresses ‘difficult’ board members,” says Mark A. Rosen, a semi-retired litigator and of-counsel for Boston-based law firm Schofield Law Group LLC. He notes that both of those are almost unheard of, but does note that some condominium boards do have codes of conduct for board members and/or unit owners.

Use Your Words

Assuming your association doesn’t have a formal code of conduct for trustees, what can a board do to put a rogue board member in check? 

The first and simplest move is simply to outvote them, says Rosen. “A board should consist of at least three members—and depending on the size of the condominium, generally more likely five or more members. Assuming there is a consensus among the ‘non-difficult’ board members, they should always be able to outvote the ‘difficult’ member. Whatever the issue or matter that’s voted upon, the decision of the board should be in writing and communicated to all unit owners, vendors, contractors and other third parties.”

If a board member seems to be in perpetual disagreement with his or her peers regarding the way they opt to handle association business, Rosen notes, “As much as possible, the majority of the board should explain to the difficult board member that decisions of the board are for the overall good of the community, and while not everyone will be happy with all the board’s decisions, the majority rules.”

If the issue with a board member is more about their behavior and demeanor than their votes, a direct conversation about it may be necessary. “If you have identified a ‘bad apple’ in your bunch, you have to decide how best to deal with him or her,” says Lombardi. “Occasionally, an honest conversation—rather than confrontation—behind closed doors about the offensive behavior may help to right the ship.”

Rosen also recommends the direct approach, but warns against letting things get personal. If a board member’s attitude or actions are persistently problematic, he suggests holding an informal intervention of sorts in a neutral setting. “At such a meeting, the ‘difficult’ board member should be advised of specific examples of their unacceptable behavior and how that has complicated the board’s decision on a specific issue or matter,” he says. “Try not to make the conversation personal or confrontational, but explain it in terms of what’s for the good of the organization as a whole.”

And remember that there’s strength in numbers. “Start with the other board members to address the issue,” Charles M. Katz-Leavy, a director with law firm Jensen Baird Gardner & Henry based in Portland, Maine, adding that “I also suggest consulting with your association’s legal counsel.”

Next Steps 

If directly addressing their behavior with an errant board member doesn’t result in a positive change—or if the trustee refuses to participate in the conversation at all—the remainder of the board must decide what to do next. 

“Owners are rarely, if ever, ‘just stuck’ when it comes to compliance by the board with applicable law and the governing documents of the association,” says Gary M. Daddario, partner at Marcus, Errico, Emmer & Brooks, P.C. in Braintree, Massachusetts. “This is not to say that there are never problems or challenges, but rather that there is a pathway towards ensuring compliance.”

“Depending on the nature of the bad actor’s conduct, more drastic measures may be required,” adds Lombardi. “Generally, if there is consensus among the other board members… it may be possible (and less disruptive to the community) to seek their resignation. As counsel, we have made demands upon individuals ‘requesting’ their resignations—lest the association explore more aggressive methods to address their ‘bad’ actions. This can be a face-saving measure for the individual in question, as well as a more economic and expedient route for the association.”

However, the legal pros point out that if worse comes to worst and a problematic board member will neither shape up nor step down voluntarily, an association may have to consider formally removing them. “Ultimately,” says Katz-Levy, “the owners have the ability to recall a board member if someone goes too far astray.”

“Most documents—whether trusts or bylaws—provide a mechanism for removing board members,” says Lombardi. “These provisions almost always require a vote of the ownership, rather than just the board members, to accomplish removal. The best of these provisions allow for removal ‘with or without cause.’ Some provisions require a ‘due process’ hearing before the board or association prior to removal.” 

“If you find yourself in a position where you have to remove a board member,” he continues, “it’s critical to carefully consult your governing documents to ensure that you follow the correct procedure. Assuming that you do abide by the terms of the documents, the courts of this Commonwealth have generally upheld removals as proper acts.”

Preventing Problems

Of course, the best solution to many a problem is to prevent the problem from occurring in the first place. While it may not weed out everyone who joins their board for selfish reasons (or who simply enjoy being jerks), implementing a formal orientation session for incoming board members can spell out the fiduciary duty they have to the community, and put them on notice that, according to Rosen, “not all board members will agree with all decisions of the board, but decisions are made in the best interests of the community as a whole.

“Second, a board should consider a ‘training’ session where new board members are informed as to how the board functions and how its decisions are implemented,” Rosen suggests,” adding that “adopting a code of conduct for board members may also be a good idea.”

Lombardi agrees. “A board code of conduct can help to establish rules and expectations for how members of the governing body should conduct themselves,” he says. “We’ve prepared a number of such documents to guide board members in their interactions with each other and their community.” 

A Culture of Respect

Of course, Lombardi notes, “The presence or absence of a code of conduct is not always a cure-all for bad behavior.”

That’s why it’s so important to cultivate and maintain a fundamental culture of respect between board members, and between trustees and residents, says Alison Phillips, VP of multifamily and commercial real estate for FirstService Residential Massachusetts. “Not everyone is going to agree on every issue, and that is fine,” she says, “But if there is a lack of respect for other people’s opinions, that creates an ineffective, unprofessional environment for everyone involved.”.

Lombardi stresses that, as noted at the top of this article, the vast majority of people who serve on their association boards do so with goodwill and pure intentions. “We have seen the opposite: those who seek to serve for the wrong reasons, or who have abandoned the right reasons somewhere along the way,” he says, “But in our experience, we have had the good fortune of dealing with mostly ‘good’ trustees—those who assume the often thankless position with genuine interest, attention, and their community’s best interests at heart.”

And upholding those best interests is the duty of every trustee—including having the occasional awkward conversation.