Owner says election was a sham
Question: The board hired a new attorney before the annual meeting. He sat with the board members during the meeting and acted like their private watchdog.
Every time an owner attempted to nominate a candidate other than someone preapproved by the board, the attorney disqualified them. In nearly every instance, owners were disqualified for not being in good standing or for being in litigation. Each new board defines good standing to suit its own needs, even if that is contrary to our own governing documents.
Afterward, a group of us researched the allegations of litigation. We found one person who was in a Small Claims action that had nothing to do with the association. No one else was in litigation. These allegations were lies devised to keep the present board in power.
None of our governing documents make “no litigation” a prerequisite for sitting on the board. Doesn’t it have a duty to fire this attorney for lying, and does this invalidate that election?
Answer: Association elections are usually invalidated by bringing the illegality to the board’s attention and hoping they expeditiously rectify it. If the board fails to address the problem adequately, the election’s validity can be determined in court. Many owners in similar situations have been faced with the unfortunate reality that they must bring a court action to remedy problems like these.
Your attorney’s actions appear to violate the association’s governing documents. Attorneys are not immune from liability, and complaints can be reported to the California State Bar.
Boards that keep changing rules and definitions to further personal agendas, or hire attorneys to aid and abet in actions designed to keep them on the board while disenfranchising others, violate their fiduciary duties to the association and titleholders.
Unless homeowners challenge this conduct, it will continue. Such actions could also expose the entire association to a lawsuit. Remember, majorities rule in associations, and there are usually many more owners than there are board members.
Executive sessions being held illegally
Question: Our association board refuses to hold open meetings. The management company and lawyer instruct the board to always meet in executive session. Every so-called association board meeting is held in executive session, and owners are not allowed to attend. Is this legal?
Answer: The situation is not legal. All association board of directors meetings must comply with the Common Interest Development Open Meeting Act, meaning every meeting is open to association members who can attend and speak. Board meetings must comply with notice requirements in accordance with the law and the association’s governing documents.
There is a distinction between a meeting and an executive session. An executive session is not a meeting. The board can only adjourn to an executive session from a duly recognized and lawfully convened association board of directors meeting.
Civil Code section 1363.05(b) says that executive sessions are only for considering litigation, formation of third-party contracts, member discipline, personnel matters or meeting with a member at the member’s request on assessments.
Once in executive session, matters are deliberated, but not decided on. All board decisions, including those discussed during an executive session, must occur in an open meeting. Section 1363.05(c) states, “any matter discussed in executive session shall be generally noted in the minutes of the immediately following meeting that is open to the entire membership.” When executive session discussions conclude, the board must return to and reconvene the existing board meeting where any decision or vote is conducted publicly in front of attending owners and recorded in the minutes.
Board members partaking in unlawful activity may be individually liable for damages the association may suffer for breaking the law. A management firm is a vendor, and as such has no authority to advise a board to meet in executive session. That advice can subject the board and association to liability.
It is interesting to learn that a lawyer is instructing the board to break the law. Under Rules of Professional Conduct section 3-210, “A member shall not advise the violation of any law.” To do so is a violation of the lawyer’s oath and should be reported to the California State Bar at www.calbar.ca.gov. Depending on the Bar’s findings, he or she might be subjected to discipline and possible disbarment.
Questions can be sent to P.O. Box 11843, Marina del Rey, CA 90295 or e-mailed to NoExit@mindspring.com.
