Q: Does the manager need to be at every meeting? We would like to get a new manager but it’s awkward discussing it in front of the current manager, who actually presides over the meetings which the board president is supposed to do. — J.M., Tustin
Q: Our board allows our paid maintenance manager to participate in every aspect of the meeting(s) including executive sessions. I find this employee to be very influential on the members and actually is allowed to sit in on the discussion and vote of their own contract with our HOA. Is this a matter for our HOA’s attorney? Do I have a right to pursue legal action against the board? — C.T., San Pedro
A: California Corporations Code Section 7210 specifically allows HOA boards (nonprofit mutual benefit corporations) to delegate management of the corporation to a third party (i.e., a manager or management company), but it still places the ultimate legal responsibility on the corporate board of directors.
Apologies to my lawyer colleagues, but we are not the most important day-to-day service providers for HOAs – that’s the professional community association manager. The manager’s role is to advise the board and carry out the board’s instructions. There is nothing wrong, and much right, with managers attending most board meetings.
The manager’s advice is often very important in helping the board make good and informed decisions (and to alert the board when more specialized expert input is needed). However, managers should advise the board and not set policy or make decisions. After receiving that advice, the board then decides what the HOA will do.
There are some meetings in which the manager’s attendance is completely inappropriate, and the greatest example of that is when the board wishes to discuss the manager’s contract, performance, or compensation. The manager should not be advising the board on those subjects, since of course the manager has a major self-interest.
There is nothing wrong or illegal with calling a board meeting and politely informing the manager they are not needed to attend that particular meeting.
Experienced and quality managers know that not every board is a good fit and that sometimes HOAs make vendor changes – including the manager. The board should be entitled to expect that the manager will not try to interfere in board reviews or even discussion of management transitions.
The manager should not chair board meetings – that is the role of a board officer, normally the HOA president. The manager should be an active participant in board meetings, because the manager provides the board information and advice on most decisions. So, managers in healthy associations should be a significant player in most meetings, but not the person actually running the meeting.
C.T., suing the board is rarely a good way to accomplish permanent change in your HOA.
The outcome of litigation often is a great expense and has reverberations of ill will for years to come. A more effective and less destructive approach is to find a slate of good people who will commit to running the HOA properly, transparently, and without personal agendas or egos interfering with the exercise of good business judgment. Then, get your neighbors to elect them!
Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober LLP, a California law firm known for community association advice. Submit questions to Kelly@roattorneys.com.