QHow can a community association be protected against unscrupulous candidates for the board of directors? I have served on our board for several years, and it is my impression that many people who want to serve on the board harbor hidden self-serving agendas. Is there any way to prevent them from being elected?
ACommunity associations -- condominiums, cooperatives and homeowners associations -- are mini-governments. At the national or local level, we elect representatives to make our laws. In a community association, we elect owners to serve on boards of directors, and these boards are empowered to manage and control the association.
Governments operate under checks and balances. If the legislature enacts a law that is unconstitutional, our court system can overturn that law. If the executive branch exceeds its authority, either the courts or the legislative body (or both) can put restrictions on the executive.
In a community association, there is one very important check on a board of directors: The members can vote to recall a board member who is acting irresponsibly. Alternatively, the membership can refuse to reelect such a member when his or her term is up.
But how can you screen such a person in advance? We have no real control over who runs for president of the United States, for a seat in the Senate or even for local dogcatcher. The situation in a community association is similar.
And how do you define a "hidden self-serving agenda"? A candidate for a seat on the board of directors, for example, wants the association to change management companies. How can you determine if the motivation is pure -- i.e., this candidate believes management is not doing its job -- or if the candidate really wants to use another company in which he has an ownership interest?
How can you decide whether the candidate is truly concerned about the welfare of the association, or is really on an ego trip and merely wants the glamour of being called president?
Equally important, what you may consider a self-serving agenda may really be a sincere effort on the part of the candidate to reform the association.
I do not believe that you can effectively screen candidates for public office based on the opinions they hold. You can, of course, as a voter, carefully question that candidate about his beliefs, objectives and goals. You can ask if the candidate has any real or potential conflicts of interest. You certainly should make sure that the candidate will devote full attention to the task of running your association. Many people volunteer to take on jobs, but find that their personal business takes too much time, and thus they cannot give their full attention to the volunteer task.
In government, we strive to have diversity among our elected officials. We encourage everyone to get involved -- whether they be black or white, gay or straight, Democrat or Republican, religious or not.
Our community associations should have this same goal. A board of directors should not speak with a uniform voice, because the community members who elect those directors have different views and different objectives.
If we try to prevent people from serving on a board, we start to move in the direction of a police state. Who will set the criteria for serving on the board? What guidelines should there be and who will develop them? In the final analysis, do we really want uniformity? Do we all have to have the same color window treatments?
Some of these rules and regulations under which an association acts are permanent. They are part of the association legal documents created by the developer of the association.
But that does not mean that your board should be a rubber stamp, blindly accepting everything without challenge. Debate is healthy for any organization. To start screening candidates for unpopular beliefs may be the death-knell of your association.
This does not mean that there is no remedy if a director acts improperly, or demonstrates that he was elected on false pretenses. All of the association legal documents I have reviewed contain provisions for recalling a member of the board of directors. Typically, the process is spelled out very clearly -- including the percentage of members required to accomplish the recall.
If association members truly believe a board member needs to be thrown out, they can do so, but they should follow the rules so the change is made with care, dignity and due process.
Benny L. Kass is a Washington lawyer. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed stamped envelope to Benny L. Kass, Suite 1100, 1050 17th St. NW, Washington, D.C. 20036. Readers may also send questions to him at that address.