End Reign

HOA Officers can be removedDoes your board president rule with an iron FIST? You don’t have to put up with it. Dictators can be toppled.

Maybe she’s been running the association single-handedly forever. Or perhaps he’s been a big shot in the business world and is certain the community needs his iron fist. Whatever the motivation, the community association president becomes a dictator.

In meetings, dictators bully and intimidate fellow board members, the manager and association members. They insist on doing things their way. They refuse to entertain dissenting opinions.

Behind the scenes, they can be just as disruptive. They steer contracts to certain vendors and refuse to sign board-approved deals with others. They tell maintenance personnel exactly how to mow the lawn or clean the pool. They threaten homeowners over minor or perceived rules infractions.

But experts in association law and governance are unanimous in their opinion that dictators can be deposed. Boards and owners have the power to remove an association president who behaves miserably. It can get ugly, but every now and again, a board or community must stand up to a dictatorial president.

“Many people don’t even know that it can be done,” says Steven J. Weil, president of Royale Management Services in Fort Lauderdale, Fla. “This is probably the hardest thing we have to deal with.”

Under most state laws and association governing documents, say legal experts, the board president has few powers beyond those held by other board members. Generally, the president is authorized to schedule meetings, open and close meetings, and sign certain documents on behalf of the association.

“A president shouldn’t be running around like a CEO,” says Jim Slaughter, a partner with Rossabi Black Slaughter in Greensboro, N.C., and president of CAI’s College of Community Association Lawyers (CCAL). “In a community association, the president is first among equals.”

Most laws and documents also give association boards the power to remove the dictator from the presidency at any time by a simple vote. In almost all cases, the president remains a member of the board, but has no more authority than fellow members.

“It’s the board’s job to decide who they want in charge,” says Weil.

There’s no tally of how many associations suffer at the hands of dictators. “Unfortunately, it happens a lot,” says Michael E. Chapnick, managing partner of Chapnick Community Association Law in Boca Raton, Fla.

Barbara Lucks, CMCA, an educator with Your HOA Team, an association management company in Fruita, Colo., says some dictators are “truly good people” but don’t know what they’re doing. Others become presidents because no one else is willing to take the job.

Some get into the position and have ulterior motives. “They get on a power trip,” says Jeffrey B. Corben, a shareholder with Maxwell & Morgan law firm in Mesa, Ariz.

Occasionally, their fellow board members don’t complain because they dislike conflict, don’t know the limitations of the president’s powers or fear repercussions.

“Some dictators are used to being in positions of power and having people following their orders” and lack the experience or patience to work as part of a team, says Kevin M. Hirzel, an attorney with the Meisner Law Group in Bingham Farms, Mich.

Board members need to remember that they have a fiduciary duty to the association, and they shouldn’t “let the dictator run amok,” says Hirzel. “Don’t be afraid to confront the person or to get the association attorney involved. A lot of times you can nip problems in the bud.”

Experts say there are five basic steps that can be taken to depose a dictator president, starting with the most limited procedure and escalating to the most extreme. If you’re lucky, only the first step will be necessary. Steps four and five are reserved for cases in which everything else has failed; these steps have a lower chance of success and can leave enduring scars on the community.

Step one: Talk to the dictator and seek a change in behavior. “The easiest and best solution, which people don’t do very often, is just go talk to the person,” says Slaughter.

A fellow board member or a member of the community who knows the president can schedule a sit-down over coffee and advise the dictator that people are unhappy—and why. The president might not be aware of the perception or impact of the actions he or she has taken. The president has an opportunity to save face because the intervention happens out of public sight.

“I always recommend the soft approach first,” says Howard S. Dakoff, an attorney with Levenfeld Pearlstein in Chicago and a CCAL member. When possible, “You don’t step on feelings and embarrass people. That can lead to positions hardening.”

Sometimes, mediation will bring about the desired change. A professional mediator or the association attorney can referee a discussion between the president and one or more board members. “This works pretty well,” says Lucks, who recalls situations where the president was even thankful that concerns were brought to the table.

If the dictator’s reaction to any of these interventions is negative, the messenger or mediator can inform the dictator that the board will remove him or her as board president if the bad behavior continues. Mentioning that such an action requires only a simple vote can be a powerful incentive for change—unless the dictator decides to hunker down and defy the board.

Step two: Study the association’s governing documents and applicable laws. If this hasn’t been done already, pore over these documents with the association’s attorney. Make sure you know exactly how to schedule and conduct a vote to remove the president from office. The parliamentarian—if there is one—or a board member should prepare responses to possible efforts by the president to try to block a vote on removing him or her from that office. Then tell the dictator that such a vote is being scheduled and that it will occur even if he or she objects or fails to attend.

Step three: Vote to remove the president as an officer of the board. In most associations, this can be done at any time and without notice, though the vote can be placed on the agenda for a regular meeting, or a special board meeting can be called for such a purpose. Board members should anticipate anger and bellicosity from the dictator. Some will claim the board doesn’t have the right to remove them and might threaten to go to court. Board members need to hold their ground and refuse to get into shouting matches or other forms of unprofessional behavior.

Frequently, once a dictator is removed from the presidency, he or she resigns from the board or abandons efforts to control the association.

Step four: Vote to remove the offender from the board. Once in a while a dictator who has been voted out of the presidency digs in and attempts to undercut the new president or even refuses to accept the fact that there is a new president.

In these cases, it might be desirable to remove the dictator from the board as well. Usually, this requires a vote of association members. The association’s governing documents should spell out procedures for calling and holding a recall election; in many communities, this action can be initiated by the board or by homeowners.

The percentage of votes required varies from community to community. Often a supermajority is necessary, and there’s no guarantee that owners will participate in adequate numbers.

“A recall is such a divisive and painful process that most communities don’t want to go there,” says Lucks.

Chapnick agrees: “It’s a difficult, time-consuming process. It takes its toll on a community.”

Step five: File a lawsuit. This is a rare option, used only when a president takes extreme measures to try to hold on to power. Board members or property owners can seek a judicial order requiring the dictator to take or not take certain actions. Failure to conform puts the dictator at risk of being declared in contempt of court.

“Obviously, it’s the last resort,” says Hirzel.

More Measures

Some additional tactics have been employed against dictators. Occasionally, fellow board members vote to censure the president.

“It sends a message that you’ve got to get back in line,” says Hirzel. This can be used to encourage the dictator to resign or can be a prelude to a vote to remove that person as president.

Some associations establish term limits for board members. This tactic has drawbacks: Term limits can take too long to force the dictator off the board, they can cut short good board members, and they can deter qualified candidates from running for the board.

“It’s too broad and draconian,” observes Dakoff.

And then there are regular association elections. Recruiting good candidates who can defeat dictators is an effective solution, though not always the most timely.

Experts say that it’s probably not possible to prevent a potential dictator from joining a board in the first place. If the homeowners vote for a dictator to represent them, the person must have some qualities that the community likes. Until the candidate becomes president and manifests a pattern of abuse, the potential dictator should be given the benefit of the doubt.

The problem of overzealous leaders isn’t confined to homeowners associations. The most recent edition of Robert’s Rules of Order features a section entitled “The Problem Chair” and notes that there are procedures for “handling an out-of-control presiding officer” on any board, says Slaughter, a past president of the American College of Parliamentary Lawyers.

Robert’s says that a board member may raise a “point of order” in response to an apparently improper action by the meeting chair. In homeowners associations, the president acts as the chair. If the chair ignores a point of order, the board member who raised it has the right to demand a vote and to appeal certain actions.

It’s extremely difficult to fight a dictator who has a majority of board member allies. When such a clique acts in a manner that goes against the best interests of the community, the usual steps don’t apply.

In these situations, says Corben, typically the law firm and the management company resign the account. All you can do, he says, is to hope the board or homeowners do the right thing and insist on a recall election.

Ultimately, it’s up to all board members to behave civilly. Threats and intimidation aren’t leadership skills.

“We all have to try to get along,” says Chapnick. “Presumably, we’re all working toward the same goal: what’s best for the community.”

By Steve Bates – CAI Common Ground