HOAleader.com - Tip of the Week - June 17, 2016
Published: Fri, 06/17/16
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Here’s When You Should Freeze Out a Fellow HOA Board Member
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In this week’s tip, we break down a Washington court ruling that says you can boot fellow board members from executive session discussions.
The case is Hartstene Pointe Maintenance Assn v. Diehl, decided in June 2015. Note that it’s an unpublished opinion, which to lawyers means they’re not supposed to rely on it in their legal arguments. Still, most lawyers take notice of unpublished opinions.
The defendant, John Diehl, owned two lots in Hartstene Pointe, a HOA in Mason County, Wash. He was also an HPMA board member.
In September 2011, the HPMA board adopted an interim hazard tree policy for its common areas, with Diehl the only board member to vote against it.
Diehl claimed the governing documents provided him, as an owner, a right to appeal the adoption of the interim policy. After consulting the HPMA’s governing documents, other board members, and the association’s lawyer, the board president drafted a summary of his meeting with the lawyer and forwarded it to all board members except Diehl. The president believed Diehl and the board held adversarial positions.
Shortly after, the board met but asked Diehl to recuse himself from the portion of the closed executive session during which the board planned to discuss Diehl’s possible appeal. He refused, so the board kept silent on the issue.
However, the HPMA sought an injunction on whether Diehl had a right to appeal the adoption of the policy, whether the board could meet in executive session to discuss potential litigation by Diehl, and whether Diehl would be required to recuse himself from those closed meetings. In the meantime, the board adopted a final hazard tree policy in 2012.
At trial, the court held that Diehl had been acting in his capacity as an owner-member and was likely to initiate litigation against the association; it also held that Washington statutes (RCW 64.38.035(2)) permitted the association to convene in closed executive session to consult with legal counsel and discuss likely or pending litigation. The court also held the board could exclude Diehl from those sessions.
On appeal, the trial court’s holdings were upheld. Specifically, the appellate court found that the trial court didn’t enter a general order that the association had the right to exclude a board member from closed executive sessions. Rather, it held that in this case, the board had the right to exclude Diehl from closed executive session because Diehl was acting in his capacity as an owner-member and not a board member and because he was likely to bring litigation against the association.
Our experts are nodding their heads at these Washington courts’ reasoning. Find out why, and how to know where to draw the line, in our new article: http://www.hoaleader.com/members/1385.cfm
Best regards,
Matt Humphrey
President
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Recent articles posted at HOAleader.com:
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Even Board Members Can Be Excluded from Executive Session
A Washington court has ruled that a board member who's opposing his board on an issue and will likely sue over that issue can be excluded from getting legal advice from the HOA's attorney and can be excluded from meetings where the issue will be discussed.
Here's the scoop, along with insight from our experts on where you can draw the line and exclude a board member from an executive session.
Click here to read full article: http://www.hoaleader.com/members/Even-Board-Members-Can-Be-Excluded-from-Executive-Session.cfm
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Do You Need an HOA Asbestos Management Policy?
An HOAleader.com reader has asked for guidance on how to create an asbestos management policy. Given the unique nature of this policy, we asked our experts if they've ever seen an HOA have such a policy and what it might include. Here's their input.
Click here to read full article: http://www.hoaleader.com/members/Do-You-Need-HOA-Asbestos-Management-Policy.cfm
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HOA President Is Out of Control: Here's the Simple Solution
We like to help our readers whenever we can, so that's what we're doing in this week's tip. The problem for our gentle reader is an HOA president signing contracts of more than $100,000 without the board's approval, not following through on other contracts, and signing five-year contracts with suspicious numbers.
Click here to read full article: http://www.hoaleader.com/public/HOA-President-Out-Control-Heres-Simple-Solution.cfm
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5 Things Board Members Can Do to Stop a Rogue Board President
An HOAleader.com reader writes, "I am vice president of a five-member board of 548 homes, villas, and condos. Our president is signing contracts for more than $100,000 without the board's approval. He isn't following through with contracts involving effluent water rations and signing five-year contracts with suspicious numbers. He is signing contracts for vendors that we don't want to extend. He and the property manager have been calling our lawyers without notifying the board and then hiding their bills in lake reserves or other nonrelated places even though our treasurer told them that wasn't acceptable.
Click here to read full article: http://www.hoaleader.com/members/5-Things-Board-Members-Can-Do-Stop-Rogue-Board-President.cfm
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HOAs and Zika: How to Stay in Your Lane
In this week's tip, we take issue with articles we've seen posted on certain websites advocating that HOAs take an active role in the prevention of the Zika virus, which has found to cause birth defects in newborns.
Click here to read full article: http://www.hoaleader.com/public/HOAs-Zika-How-Stay-in-Your-Lane.cfm
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