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HOA calls in lawyer to deal with reported bad behavior

Q: Can a homeowners association board send a letter like this to another board member?

Also, can an executive session be held with one board member participating by telephone?

Dear Board Member:

The undersigned has been retained by the Homeowners Association (“Association”) to provide legal services as its general counsel. The Board of Directors has requested that I contact you with regard to your conduct at its Nov. 12 meeting, which included obvious intoxication, use of profanity and acting in a threatening manner by pounding your fists on the table.

The above-described actions violate both Nevada law and various provisions of the governing documents. For example, Nevada Revised Statute (“NRS”) 116.31184 prohibits certain persons, including board members from threatening, harassing or otherwise engaging in a course of conduct against others which creates a hostile environment or which might cause harm or serious emotional distress. Additionally, your conduct might be considered to be a nuisance which may disqualify you from serving on the board (Bylaws, Article III, §3.2.1).

The Board’s other members hope to resolve this matter informally and expeditiously. I understand that if you would confirm, in writing, your agreement to cease and desist from further similar actions in the future, no further action will be taken. If you have any questions or comments, please feel free to contact the undersigned at your convenience.

The HOA president initiated this letter from the lawyer. I listened to the recording of the meeting referred to in the letter. The board member referenced in the letter made many motions and all were passed. He did raise his voice over four issues when all members were arguing, no slurring, no swearing, but frustrated.

The president used the words: stupid and damn and used the words drunk and liar when talking to board members and residents. He slurred his words throughout the meeting. He presented new projects without anyone knowing what they were. He also made comments whenever anyone voted against his proposals. He interrupted the meeting and shouted over everyone; and told people to “shut the hell up” and informed the attendees that he “didn’t take crap from anyone.”

A: Yes, such a letter can be sent to a board member but the question that might be raised is to when and where was the decision made by the board of directors to contact the association’s legal counsel to draft the letter.

This type of action of contacting legal counsel to become involved to assist the board would normally occur in the executive session. This is a delicate problem for any association as they cannot afford to have any member of the board to act inappropriately. Was such a motion made in executive session? If not, then a challenge could be made that the method of how the decision was made was contrary to the law.

As to whether a board member could participate by phone or by Skype, the answer would be yes as there is no state law prohibiting the member from calling into the meeting. As long as other board members are present (by phone or in person) to meet the requirements of a quorum, the board meeting can commence. You would formally note in the meeting minutes that the director was not physically present. The community manager should have a written record of a vote taken and approved by the majority of the board members to proceed seeking legal counsel.

Could the action by the board member be considered a possible health and safety issue to where the board could make a decision outside of a board meeting? This is a gray area where associations would need to discuss this matter with their legal counsel.

Barbara Holland is a certified property manager, broker and supervisory certified association manager. Questions may be sent to holland744o@gmail.com.

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