Q: Our HOA board has developed a code of conduct policy for board members. It specifically states that board members who violate it can be removed. Our bylaws include a specific process for removal of board members, based on a percentage vote of the members of the HOA. Can the board adopt a policy that conflicts with the bylaws?
A: I occasionally have HOA boards ask me to provide them with a “Code of Conduct” or “Code of Ethics” for HOA officers and directors, usually when one person has done something that the others view as ethically questionable. Typically, the officers and directors are asked to sign a copy of the code, acknowledging that they have read it, understand it, and agree to abide by it.
Unless your bylaws have a specific provision that requires directors to sign or abide by such a code of conduct, there’s nothing your HOA board can do to “force” them to do so. If a director refuses to sign or abide by a code of conduct, that may be grounds for removal – but the board, acting alone, typically has no authority to remove a director. Unless the bylaws permit the board to remove a director, removal can occur only with a vote of the members of the HOA.
Both the North Carolina Planned Community Act and the Condominium Act have the following provision:
“Notwithstanding any provision of the declaration or bylaws to the contrary, the [association members], by a majority vote of all persons present and entitled to vote at any meeting of the lot owners at which a quorum is present, may remove any member of the executive board with or without cause, other than a member appointed by the declarant.”
Note that this statute requires that only a majority of owners present at a meeting (at which the quorum requirement has been met) need to approve the removal of a director – not a majority of all members. If the board code of conduct terms conflict with these provisions of the statutes regarding removal of directors, the statutory provisions on removal will control.
The Community Association Institute has crafted a sample Code of Conduct for HOA boards, which can be found here: https://www.caionline.org/HomeownerLeaders/Pages/default.aspx
This column was originally published in the Charlotte Observer on March 18, 2017. © All rights reserved.