A Dysfunctional Board - Restoring Order at Meetings
Question: Q: Our 13 member Board of Directors has been struggling with internal dissension for a long time, largely because of personality conflicts among some of the trustees. Meetings are tense and sometimes unruly and decision-making is difficult. The newly elected president wants to adopt some reasonable rules of conduct, outside of parliamentary procedure, to keep the behavior civil. Is it a good idea to adopt such a policy and if so, what guidelines should the policy contain and what sanctions could the board impose for board members who violate it?
Answer: A: Your board is by no means the only one to confront this problem. Although most communities “do a good job of electing trustees who don’t have behavioral problems,” Gary Daddario, a partner in Perkins & Anctil, P.C., observes. But as your experience illustrates, they don’t always succeed.
The attorneys we consulted (Daddario and Sandy Moskowitz, a partner in Davis, Malm & D’Agostine, P.C.) agreed that boards clearly have the authority to establish rules governing their meetings. And that is one of the options you might want to consider.
But before taking any formal steps, Daddario suggests, the board president and other board members who share his concerns should try talking to the disruptive trustee (or trustees), assuming they haven’t made this effort already. “Sometimes people aren’t aware of the impact their behavior has on others,” he suggests.
A straightforward discussion of the problems the disruptive trustees are creating might be all that is required to get them (literally) back on board. But if the “can’t we all get along” approach doesn’t work, adopting formal rules and enforcing them would be a logical next step.
You asked specifically about rules “outside of parliamentary procedure,” but Daddario and Moskowitz agree that following parliamentary procedure can be an effective means of controlling unruly board members. Robert’s Rules of Order, the parliamentary bible, is the obvious guide, but some find it to be complex and unwieldy. As an alternative, the board can adopt its own meeting rules, and they don’t have to be extensive – a few basic procedural requirements should suffice, primary among them:
• Members must wait to be recognized by the chair before speaking and can’t interrupt other speakers.
• Discussions must be civil and respectful; no personal attacks or profanity allowed.
• The time allowed for the meeting as a whole and for each speaker on each issue should be limited.
The Community Associations Institute (CAI) has developed a model code of conduct for board members that your board may want to adopt or use as a guide in developing their own procedural rules, Daddario suggests.
Formal rules prescribing how meetings will be run and the behavior of people participating in them “are designed to force people to treat each other respectfully,” Moskowitz says. They define the behavior that is and isn’t allowed and they give the president (or who is chairing the meeting) the tools with which to control it. Ruling unruly board members out of order (when they are), voting to cut off debate and other parliamentary maneuvers can make it harder for a few uncooperative board members to obstruct the rest of the board.
While there is no question about the board’s authority to police itself, there may be a question about its ability to adopt the rules that could help it do so. A majority of the board would have to agree to follow Robert’s Rules or any others at meetings, and all (or at least most) board members would have to agree to abide by them. If half the board members (or more) ignore the rules, they’re not going to do much to make board meetings less tense or more productive.
Your ability to impose sanctions on trustees who violate the board’s internal rules depends on what the community’s bylaws allow. Fines are one obvious means of discouraging unacceptable behavior, but that option is available, Daddario cautions, only if the condominium’s governing documents give the board general fining authority. If the board doesn’t have the authority to fine owners, he notes, then board members would argue that it doesn’t have the authority to fine them either.
If all other efforts to improve the behavior of the board’s bad apples fail, then as a last resort, the board can try to have them removed. Some documents give boards the authority to replace trustees for specified causes and outline procedures for doing so, but those provisions are rare, Daddario says, and “troublemaking” or “obstructive behavior” aren’t typically on the list of causes for which trustees can be removed.
Many documents do establish procedures through which owners can demand a special election for the purpose of replacing trustees with whom they are dissatisfied, Moskowitz suggests.
“I believe associations operate like mini-governments,” he notes, and like elected government officials, “sometimes association trustees have to go to the voters,” and ask them to take action to address a problem.
If removal isn’t an option – either because the documents don’t provide for it or the owners aren’t willing to pursue it, then Moskowitz suggests, trustees should do whatever they can to limit the disruptive behavior, hope owners will replace the uncooperative board member(s) at the next election, and plan to campaign actively to encourage them to do so.