Can HOA Boards Kick A Bad Board Member Off The Board?

Look for other posts on this blog and also on the California Condo & HOA Law blog which is accessible on the main page of my website for more on what to do about bad boards. I am thinking of doing an E-newsletter sometime in the next couple of months on the topic.

A board cannot kick another board member off the board unless there are provisions for removal (that would be legal) in the governing documents. Examples of legal provisions:

If a director is a convicted felon.

If a judgment of the court is obtained stating the director is not competent to serve.

If the director is by election of the members removed.

If the bylaws provide qualifications and the director fails to meet the qualifications.

….

STOP HERE and understand these concepts:

Commonly, bylaws require attendance at meetings and allow the board to “vacate” the board member’s position on the board if they miss 3 consecutive meetings – but be sure to read the section carefully and see if missing the meeting requires good cause and/or a hearing is required.

I have heard practitioners talk about adding other qualifications that would allow “vacating” the position and I agree with qualifications for ownership in the development, good standing, only one owner per unit can serve, agreeing to sign a (reasonable) Code of Conduct and the like, if these appear in the Bylaws at the time the Director is elected!

I cannot say that I agree a board should be able to kick a director off the board for disrupting a meeting or bad conduct, unless the board has attempted first through other legal means of neutralizing or  taking the wind out of the sails (in other words, addressing the specific conduct and effect).

I am not positive a court would uphold an order of a board to remove a director based on director conduct alone, unless it was really eggregious, because of the ability to override the election of the members of directors.

I would be more likely to advise at first trying other means, such as suspending a Director temporarily from board meeting attendance as a test to see if he or she will agree to be less disruptive, or issuing orders to stay away from employees or vendors, or fines for nuisance disturbances, or calling the police in response to a serious meeting disruption and making a report before declaring a director seat vacant (for conduct) without a court order or recall election, because without other attempts to get compliance to good behavior BEFORE kicking the director off the board could lead to some very unfair treatment of those directors with minority views.

Why?

Because I believe a board could easily abuse or misuse the hammer of kicking someone with minority views off the board, especially if they did not enlist the help and advice of a knowledgeable professional. If this were to occur it would go against the election process.

A slap on the hands is the place to start, not a KO. (Unless we are talking guns and physical threats, in which case the police should definitely be called).

 

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