There are many ways board members can “go rogue.” There are those who refuse to keep matters confidential, making sure they satisfy their constituency by handing out information as it becomes available. There are those who hire their personal attorneys, architects, or other professionals to give a second opinion, regardless of whether the other board members want it. Some believe they get special privileges by virtue of their being elected (as our best board members know, it is the opposite; they want to make sure they are treated the same as – or maybe even worse than – everyone else). And there are board members who sometimes decide that because they have been elected to the board, they have the right to admonish building staff, even if that employee has not violated any rule or policy. Some even think they can, without board knowledge or approval, meet and negotiate with building vendors, sometimes even firing them without anyone knowing about it. The staff complains, vendors complain, apartment owners complain. Trying to reason with a board member like this sometimes gets you nowhere. What does a board do? And more to the point, how does the board effectively notify its employees and vendors and figure out what action, if any, to take against the “rogue” board member without that board member sitting in on every meeting?
Unless governing documents do not allow it, board members can call a meeting for the purpose of appointing a committee to address issues with a rogue board member and allow that committee to act (or act up to a point) without the authority of the full board. That way, the committee (perhaps made up of all board members other than the one who is creating havoc) can, for example, meet with counsel, draft and approve letters, or, if it comes to it, authorize beginning a lawsuit. The committee can also discuss the pros and cons of sending a letter to employees or third parties, advising that the rogue member has no authority to act on behalf of the board and to report any contact made by the board member. The committee-board members – working with the building’s counsel and managing agent (both of whom have likely seen this issue before) – must balance potential claims of defamation by the board member against claims of employees and, to the extent it arises, claims made by the union on behalf of staff. There is no perfect solution and no easy answer. The board’s options may be limited and any acts may take time. However, a board that has recognized the issue and attempts to find a solution is taking a step in the right direction.