Many if not most boards of trustees get along famously. There are boards that have had the same members for decades and run their communities without a hitch. But sometimes boards don’t get along so well.

We frequently get calls from readers who are troubled when they find that their board members and trustees seem to be operating under a different set of rules than the rest of the community. For example, they get preferential treatment for parking spots, ignore pet rules, fast-track their own alteration projects, fail to pay their assessments on time, and disrupt board and shareholder meetings. Rogue board members negatively affect building morale, erode residents' confidence in their board, and can even have serious legal ramifications as well.

Role Playing

A potential driver of the “rogue board member” phenomenon is the evolution of the job description. This is not your father’s board.

“The role of a board member is defined in the governing documents and applicable statutes,” says Henry A. Goodman, an attorney and founding partner of Goodman, Shapiro & Lombardi, LLC in Dedham, Massachusetts. “To generalize however, a board member is required to act for the benefit of all owners with regard to their common interests such as the common property and interference with the right to peacefully enjoy their property.”

“We are a 25 year-old, 86-unit complex and have been self-managed since 2008. That was probably the best decision we ever made,” says Karen Burkinshaw, president of the Clearview Heights Condominium Association in Chicopee, Massachusetts. “Our board members do everything from contacting multiple contractors to do a job (we had our building re-sided this year) to interviewing them, vetting them, choosing the one, meeting the one to be sure we know what needs to be done, to coordinating those requirements with the owners/renters, to making sure the contractor has access to the meeting room, to answering questions from the contractors and owners. When we replaced the siding, one of our trustees was on the property everyday and even became familiar with the contractors employees.”

“A lot of times people have no idea what their roles are when they are elected to a board,” says Charles A. Perkins, a Westford, Massachusetts-based attorney and senior partner with the law firm of Perkins & Anctil, which specializes in all facets of condominium law. “When associations elect new board members they should consider sending them to a CAI [Community Associations Institute] course or having materials prepared to give to the new board member or have a code of conduct. Generally you get on a board and the sense is that as a board member you have a general obligation of good faith and loyalty to the organization.”

Agendas vs. Duties

A primary symptom of board members straying from the reservation is the all-too-human tendency to regard themselves as above the rules. Another cause of the “rogue board member” problem concerns an individual’s motivations for joining the board in the first place.

More often than not, board campaigns are issue-driven. In other words, residents throw their hat into the ring because of their own personal agenda or pet issue: a better parking lot, different pool hours, what have you.

“Board members breaking their own bylaws have been known to happen,” says Perkins. “A board member may say you can go build this and he/she hasn’t consulted other board members. A board member may take things from an executive session and disseminate them to the community, maybe in understanding the secrecy and not wanting to abide by it. There are situations that could be parking in places where you’re not supposed to and they can start fighting over that stuff.”

Goodman notes that board members and trustees sometimes have their own personal agendas or “pet” causes. “Some board members run for the board because they have a ‘cause’ such as prohibiting dogs or some other issue and their issue may conflict with the policies of the board,” says Goodman. “Some board members do not take no for an answer. Once the board has had a vote and the appropriate number carry the day, a member in opposition may not accept the will of the board and continue the argument by either ‘taking it to the people’ or by constantly bringing it up at meetings over and over again. Furthermore, some board members will seek to have fines and late fees waived, calling on their fellow board members to blink if they are late in paying common fees or have violated the rules. Some board members become members of the board because they expect they will get preferential treatment in such things as priority snow plowing or landscaping, repairs, and hiring of friends and relatives.”

“To the best of my knowledge, none of our trustees break or bend the rules,” adds Burkinshaw. “In fact, in 2013 we spent one year redrafting our rules and regulations. Every word was discussed with full board participation. We did a lot of ‘what does that mean?’ ‘Does that mean I can’t have a plant on my deck?’ We then discussed the matter and determined what the reasonable rule would be. All trustees were fully engaged in this process. We have long term, hard working board members who all get along and respect each other’s ideas, opinions and differences. We care deeply about where we live.”

But not all board members get along so well. A Type-A personality paired with an obstinate belief that one’s opinion is correct can be fertile ground for conflict with other board members, as well as residents.

“Conflict occurs lots of times,” says Perkins. “One way is between board members because neither of them understands what their responsibilities are and there is no code of conduct that would address that. For instance, you go to the mailbox on Saturday morning and Mr. Jones comes up to you and says you voted on my request to have a dog, and you say we voted against it. When the answer really should be ‘you need to approach the management company. I’m not authorized to talk you about these things individually.’ It’s even worse when the board member says I voted for you to have a dog and board members, A, B and C voted against it. Let’s toss those bums out.”

Board members are running a business—complete with revenues, expenses and assets, and therefore have a fiduciary duty to their shareholders. In other words, they must place the interests of the community above all other interests—especially, their own.

“In exercising their role, board members are subject to rules of conduct which differ depending upon the nature of the power they are exercising,” says Goodman. “For example, when handling other peoples’ money such as the common funds, the board has a fiduciary duty to see to its safeguarding.”

Resources do exist to help both boards and new board members become more aware and compliant with house rules and bylaws.

“You can always propose to use Robert’s Rules of Order if you’re worried about a new board member following protocol,” says Perkins. “But sometimes telling them you are going to operate under Robert’s Rules is like telling them you have to eat vegetables for the rest of your life. There aren’t a lot of lawyers who understand it—never mind lay people who are now requested to be in a position of not only understanding how Robert’s Rules operate, but having someone who has to be the parliamentarian and sort of the gatekeeper and make rules. It doesn’t mean you can’t adopt a code of conduct for your board and how you can operate.”

“We meet twice a month. One meeting a month is the official monthly board meeting when we do the bulk of the business. These meetings are always open to all owners and residents,” says Burkinshaw. “The other meeting we have is a closed meeting where we invite contractors in to update their progress and we catch each other up on the progress of various projects.”

Reining Them In

So what can be done about rogue board members?

“You can notify the entire board and ask them to investigate,” suggests Perkins. “You can bring a derivative suit, but that costs a lot of money. You should try to operate within the organization even if it’s just going to the board and saying something along the lines of—‘I’d like to have a meeting with the board without having the offending board member there, so that we can talk and I can let you know what’s going on.’ ”

Residents, too, can get more involved. One of the reasons rogue board members get that way is because they detect a feeling of apathy among residents. Experts believe that residents should attend board meetings and become more active in the community.

“No one member is king or queen of the association,” says Goodman. “Majority rules in associations, and that’s the way it should be.”    

Greg Olear is a freelance writer and a frequent contributor to New England Condominium. Staff writer Christy Smith-Sloman contributed to this article.