Can a board require a member to resign?

 
Posted11/14/2020 7:00 AM

Q: The board of our association requires new board members to sign a "board member oath." It includes some very good guidance to board members. It also includes a provision that the board member must submit a resignation if the board determines the board member has violated the oath. That seems like an "end around" the provisions of the declaration that require owner approval to remove a person from the board. Is the board alone going to be able to force a board member's resignation?

A: I have seen various versions of a "board member oath." Many of these documents provide a very meaningful summary to board members about what is required to fulfill their fiduciary duty. Board member conduct should conform to a well drafted set of these guidelines. The board can certainly ask a board member to resign for a significant breach of the guidelines and their fiduciary duty. However, I am not overly confident that such guidelines can require a board member to resign in lieu of following the board member removal procedure described in an association's declaration.

 

Q: Our association issued a notice to residents that a person who attended the outdoor annual meeting tested positive for COVID-19 just days after the meeting. The notification did not identify the resident in question. Should it have?

A: While the board's duty to notify owners of a resident with COVID-19 is less than "crystal clear," in the event the board learns that a resident/staff member at the association has contracted COVID-19, many residents have an expectation they will be notified. Therefore, failure to do so may create some discord. It's a business decision of the board whether to advise other residents. Any notification sent to residents can suggest they contact their own medical providers and to follow their own medical providers' advice as warranted.

It appears that the consensus of thought is that, due to privacy concerns and in order to promote full disclosure to the board (and authorities) from residents with the virus without any fear that they might be ridiculed, the board should not disclose the infected person's name or unit number. However, this is conditioned on the infected individual following proper government protocols. If the infected person is not following protocols, like self-quarantining, the health department should be contacted. Of course, with the permission of the resident, their name could be shared.

Q: The board of our association discovered the previously approved minutes of a board meeting include an error. The minutes misidentify the month of a management report that was addressed at the meeting. What is the procedure to correct this mistake in the approved minutes?

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A: This issue comes up from time to time and there appears to be multiple schools of thought to deal with it. I find that the following approach creates a good paper trail:

At a board meeting, a motion should be made and adopted to amend the previously approved minutes of "such and such date" and that describes the revision to be made to those prior minutes. The motion should also direct the secretary to make the correction to the original minutes.

After this action, the change should be made on the previously approved minutes, and it should be noted on those minutes that the revision is being made following a board decision at a meeting of "such and such a date." Both the original and revised minutes could be attached to one another, with one marked "revised." That should provide a good solution, history, and paper trail for those who will read the minutes in the future.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.

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