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QUESTION/ANSWER BY JOHN H. GETTINGER, ESQ.

Question:

A fellow board member in my opinion has been treating one of our residents unfairly. It does not go beyond illegal activity, but it is close. This resident has reported the board member to the local authorities and management company. Expressing my opinion unofficially to the board member has not provided this resident any relief. What else can I do in my official and unofficial capacity, and am I putting the association at risk by taking or not taking action?

Answer:

As a member of the board, you have a fiduciary duty to act in the best interests of the association. Inasmuch as this resident has reported the conduct to the management company (which is the agent for the board) and you are aware of it, it is a matter of concern to the board. You should bring the matter before the board at a meeting, and the board should determine what action, if any, should be taken against this "fellow board member." In reaching this decision, the board should evaluate the conduct of this board member in the same manner which it would when evaluating the conduct of any other homeowner, and determine whether it violates any provision of the association's declaration, by-laws or rules and regulations. The offending board member should recuse himself or herself from any discussions and vote with respect to this matter. The failure of the board to act under these circumstances could subject the association to liability in the event that any future conduct by this board member, which could have been prevented by the board if it had acted, should cause a homeowner to sustain legal damages.

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