Q. I am the president of a condo board. An owner asked to join the board, and we simply let her—she was never formally voted onto the board. Since then, she has been so awful, self-centered, and abusive that one board member resigned. We have asked her to resign but she refuses. Since she was never voted onto the board, can we remove her? Or do we have to submit a letter to the owners to have her voted off?
— Frustrated Colleague
A. “We have all heard the ‘bad apple’—you know, the one that goes something like: ‘All it takes is one bad apple to spoil the bunch,’” says Frank A. Lombardi of Lombardi Law Group in Lincoln, Rhode Island. “There is scientific truth to this statement. A decaying apple emits ethylene gas, a naturally occurring plant hormone, the release of which will speed up the ripening (molding/decaying) of nearby apples or other fruit. That’s interesting trivia, but of course most of the time when we hear about ‘bad apples,’ it’s in the metaphorical sense of the word.
“A ‘bad’ board member, like the one described above, can present a real, serious problem for a community association. Board members stand in a fiduciary role, and owe duties of loyalty and care to the associations they serve. Board members 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. 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. However, we have seen the opposite as well: those who seek to serve for the wrong reasons, or who have abandoned the right reasons somewhere along the way.
“A board code of conduct can help to establish rules and expectations for how members of the governing body should conduct themselves. We have prepared a number of such documents to guide board members in their interactions with each other and their community. However, the presence or absence of a code of conduct is not always a cure-all for bad behavior.
“If you have identified a ‘bad apple’ in your bunch, you have to decide how best to deal with her. Occasionally, an honest conversation—rather than confrontation—behind closed doors about the offensive behavior may help to right the ship. Depending on the nature of the bad actor’s conduct, however, more drastic measures may be required. Generally, if there is consensus among the other board members that it is only one of their number who is ‘bad,’ it may be possible (and less disruptive to the community) to seek her 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.
“If worse comes to worst, however, the association may have to consider formal removal of the ‘bad’ member pursuant to its governing documents. Most documents—whether trusts or bylaws—provide a mechanism for removing board members. 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, it is critical to carefully consult the 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.”
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