In this week's tip, we answer a reader's question that raises a fairly common problem: How far can a board member on the minority side of a vote go in making their case to owners? And does the full board have to assist in that information-sharing
effort?
Our reader says their association is in the midst of a special assessment campaign, and our reader believes the board is ignoring their fiduciary duty by not doing enough to maintain the property. The board member has written a
"dissenting financial analysis" and wants the board to ship that out with the packet sent to owners about the special assessment.
Is our reader's board obligated to do that?
Experts in various states say that generally, their client boards wouldn't have to allow a dissenting board member's contrary information to be sent to owners with the board's information about a special assessment.
"As a general matter, boards should try to be united in their efforts and communications, and the majority vote would control what's released," says Edward Hoffman Jr., the founder of Hoffman Law LLC, a two-office law firm based in Pennsylvania, who has represented community associations for more than 21 years.
"In normal circumstances, there shouldn't be conflicting information released.
"If the board member's vote against this issue is reflected in the minutes," he adds, "I'd advise the board that I don't think it's the board's obligation to
send out a manifesto from a disagreeing board member.
"Sometimes a board member puts out their own information, and the question becomes: Did they do it outside the scope of their duty and should they not have done that?" asks Hoffman. "But
you don't want this information coming from the board that way. The board should be unified in its communications. I don't mean unified by vote but in saying, ‘This is the majority vote of the board of directors.'"
That's also the case in
Florida. "You can ask that the board send this information out with the voting materials," explains Carolina Sznajderman Sheir, a partner at Eisinger Law in Hollywood, Fla., which represents 600-700 associations throughout the state, who's board certified in condo and planned development law by the Florida Bar. "But they don't have any obligation to grant that request. That's not part of our statute to require that."