Can board member’s decision while intoxicated be made void?

Question: Recently I attended a board meeting of my homeowners association. The president had obviously been drinking. He was slurring his words and became so confused halfway through the meeting that the vice president had to take over. The other directors didn’t seem to have a problem with this. The president has a reputation for having loud drinking parties at his house and disturbing neighbors who complain to security, yet he has not received any violations as other residents have for the same kind of behavior. I looked up the president’s court records and found a number of DUIs going back at least 10 years, including a felony DUI with jail time. Can a convicted felon serve on an association’s board of directors? Also, can a decision by a board member be made void if it was made while he was intoxicated?

Answer: There is no reference to “felons” in either the Davis-Stirling Act or the Corporations Code in regard to determining who can serve as a director. Check your association’s covenants, conditions and restrictions for references to felons and/or qualifications for being elected to your board of directors. It would be very simple to out vote him unless owners also agree the particular item being voted upon by that director is in the best interest of the association and its owners.

As long as the association’s titleholders are satisfied with this individual’s performance, owners may continue to reelect him. If his alcoholism is so overwhelming as to impair his ability to act as a director, then the other directors and titleholders have an obligation to remove him from his position. Directors can remove him from the board if his condition is one listed in the governing documents as grounds for removal from the board. The director could also be removed if he is unable to perform his duties or he could be given a position other than president if the directors allow him to remain on the board. If he is allowed to remain because the other directors are protecting him, all the board members should be removed and a new board elected.

Boards act as a “body” and no single director acts alone — even if the title is “president.” Regardless of how the president votes, it will still be how the majority of the board votes that will decide the issue. His one vote may not void the board’s decision if the majority, including this director, vote in favor of or against any motion.

Asking someone under the influence of drugs or alcohol to use good judgment, when that judgment is already impaired, is risky and poses a liability to the association. Other board directors have a duty to mitigate any damages that may occur to its owners and the association that stem from allowing this director to continue in his position.

The late Stephen Glassman, an attorney specializing in corporate and business law, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to P.O. Box 10490, Marina del Rey, CA 90295, or noexit@mindspring.com.