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May 26, 2009
CONDO DIRECTOR ON THE CHAT LINE - DOES THAT MEAN TROUBLE??
Lots of people want to know whether owner "chat lines" are a good idea. They can be. It is nice to have a way that homeowners can communicate ideas, questions, etc. ... at least in theory.
The downside is that many people forego proper web or internet etiquite, forget their manners, whack off a message without thinking about it before hitting send, develop a contrary persona behind the shield of the computer, and/or fail to think before acting, and sometimes a chat line can become a really toxic, devisive thing for a homeowners association. And enforcing rules on posts can become a real nightmare. So think carefully before starting one. And, below is a thoughtful question from an owner who started a "google online group" for owners in the complex, and now is grappling with what parameters might be important if this owner gets on the board. Here are the comments and questions this person has already identified:
"I started a google group (email list) that homeowners can subscribe to so they can share concerns with other homeowners. Since I'll be joining the board of directors soon, I don't want to give up the ability to listen to and reply to homeowner concerns. Can I still participate in this email group in my capacity as a homeowner? Can I just preface comments with a disclaimer that I am speaking as an independent homeowner and my opinions do not represent the position of the board in any way? Is there any way I can maintain my participation in this group without violating my obligations as a board member?"
The person has answered their own question to some degree. Board members like owners can participate in the online chat group; however, there are many considerations. Attempting to speak "as a homeowner" rather than a "board member" is fine, again, in theory. But think about it - how do you illustrate which hat you are wearing? Perhaps use the tagline, "Joe Blow, speaking as a homeowner and not a board member"?
That is sure to confuse the participants. They may be asking: "Why the byline - is the person at odds with the board? Is there something wrong?"
And think about it - if a director is in the minority of like thinkers on the board and does not agree with decisions being made by the board, and publishes their views "as a homeowner and not a board member", it can undermine the board's ability to gain community consensus on important decisions. A board member certainly has a right to disagree with and debate proposed actions of the Board and vote against them. But a "debate" among board members at a board meeting is different than a one-sided "debate" in a chat room. Not everyone who counts is there to balance the tables and keep matters under control.
In my experience (of course I usually get the call when a chat line is out of control), the most vocal participants usually are people who really want to cause trouble or specifically want to undermine the Board decisions. And they are not rational or "nice" about it. And once the majority of the board has approved an action, anything a minority or dissident board member does or says on the chat line to undermine that action is - arguably - contrary to the best interests of the group as a whole. This is not a problem for an owner in terms of fiduciary duty (although it may raise other issues such as defamation or misrepresentation of information), but it is a big problem for a board member - because a board member has a fiduciary duty which means a duty to put the interests of the group ahead of his or her own interests or those of any individual owner.
One way a board can help if the HOA or Condo Association has a chat line is to adopt a policy regarding its use. If an owner starts it, however, regulating it becomes more difficult. If a chat line gets out of hand, there are measures a board could take to exercise "damage control."
However, I won't go into those unless you want to seek a paid consultation because I would want more information on any particular situation before proposing a remedy or "damage control" advice.
As to the question at hand, if board members are going to participate in HOA or Condo chat lines, I believe a proper and legal adoption of a policy of conduct would at least be advisable, one that allows board members to participate in a chat line so long as they do not take action or make comments about matters discussed in executive session or that are otherwise confidential, and that they exercise discretion and avoid breaching their fiduciary duty by making comments that would be devisive or that would undermine any actions approved by the Board.
Yes, I know you are going to say it - that is broad, and open to interpretation. Yes it is. And someone will write to me and say: "You can't control free speech rights!"
For more on refining the points to avoid varying interpretations, and to deal with any potential issues of suppression of free speech while at the same time enveloping a plan to deal with inappropriate conduct on the chat line, you would need legal advice because there are several considerations and potential legal issues involved in board members speaking publicly (which would encompass a chat line) including, but not limited to: possible issues arising because of breach of fiduciary duty, defamation, discrimination, violation of free speech rights, breach of privacy, etc.
You can learn alot about board duties including fiduciary duty requirements in the two Board Basic Primers (I and II) available through the Condoguru webstore at the California Condo Guru Website.
Posted by Beth Grimm at May 26, 2009 8:59 AM