That's going to be a tricky situation, BT.

I suggest speaking with your corporate counsel first. You need to know where you stand before asking the guy to do something.

Find out what he can be asked to do, in what time frame, etc., under your propreitary lease and the law. (There's plenty of case law on smokers -- do you read The Times's Real Estate section?)

Then ask the person nicely, not at a board meeting. Presumably that won't work, so it should next be brought up at a board meeting so the smoker can see that it's all of you vs. him (have with you copies of letters complaining about him) . If that doesn't work, you'll have to have a letter sent. Remember, the lawyer works for the board president (so I hope the smoker isn't the pres!), not individual members of the board, so the smoker can't have the lawyer fire back.

Is this person an officer too (secretary, treasurer or vice president)? Our by-laws allow the board to strip an officer of his/her office by majority vote. NOTE: This is NOT stripping him/her of membership on the board; that probably requires a votes of the shareholders. But it's something you can do to send a message that his behavior is not proper.

I'm curious to see what other suggest ... they are probably better ideas out there.

Please explain "lawyer works for the board president". Does not the lawyer work for the entire board of directors?

That's a good question. Let me preface this by pointing out that I am not a lawyer, just a board member who works with one. So before you make any decision, consult your lawyer first.

Here's what I mean. Our board recently needed to hire a new corporate counsel (our previous one raised his rates too high for us). We interviewed several lawyers. One of the questions we asked was, "What is one of the biggest mistakes boards make?" One of the replies was "infighting."

The lawyer went on to say that in a case where the board doesn't agree on an issue that involves the lawyer, the lawyer has to follow the president's instructions.

So even if the board wants to do X, and the president tells the lawyer to do Y, the lawyer has to do the latter. (Doing so, of course, sets up the board president for a coup.)

Again, I'm not a lawyer, so don't take this as case law. In the example of the original question, I was pointing out that if the smoker is the board president, the board as a whole may be limited in its legal options -- because the board president could block them. Which would be an abrogation of his/her fiduciary duty, but if the person is addicted to nicotine, he/she may not see things clearly.

Thanks for all the feedback. We have 2 co-presidents (it is a really small building with lots of problems so they are splitting it). The problem person is secretary. We are not really talking about cigarette smoke, though there are small smaller issues with that within the building. It is pot smoke. Just to re-cap, management sent a letter last year whereupon the behavior got better but it always reverts. A shareholder spoke to him directly about the smoke and was sent a note apologizing saying a new air filter was bought. While that has lessened the odor for now, it will come back. The bass noise is always audible in the lobby and halls and travels through the floors and walls into the shareholders units above. He is only on the Board to protect himself, and probably assumes we will be in this confused position about how to deal with it.

If the offending shareholder is a heavy pot smoker, why wasn't the illegality of this used as leverage to get him to be more compliant? Couldn't this be used now?

I generally agree with AdC and Steve with an exception - that if the board wants to do X and the president wants to do Y, the coop's lawyer has to do what the president wants.

The lawyer doesn't work for the board, the president, any one board member, any shareholders or management. He works for the coop - the apartment corporation. He is not duty bound to do what the president wants. His job is to work in the best interests of the coop as a whole. If he believes that what the president wants doesn't accomplish that, he isn't duty bound to comply, and he can't just do what he wants either.

Much of a lawyer's job is advisory. If a board disagrees on what to do in a particular case, he should advise them as to what's legal, proper and best for the coop. He shouldn't just do what anyone wants. If a board (including president) can't agree on something that will be in the coop's best interests, he shouldn't do anything until they can agree on this. Some lawyers may not follow this precept but this is what they should do.

For your info, as a board president, if I have a disagreement with the board, i.e., I think one way and the majority another, I ask the attorney to speak with the board (all members) and go over the situation. Everyone gets the education and the benefit of the doubt.

But it's not me and my lawyer. As you well stated, it is the co-op legal counsel. The day I want to pay for my personal advice, I will count my pennies and open my pocket.

AdC

Glad you agree, AdC. A coop attorney works for the coop. We had a Sh who wanted to sue two board members. He claimed they OK'd a new coop fee that he couldn't afford to pay and they knew he had financial problems because he told them so in private as "friends". Our attorney said he couldn't address issues for individual board members and they'd have to get their own attorneys to handle it. (The Sh eventually dropped the whole thing.)

A friend who's on a board in another coop had problems with three Shs who openly told lies about him to get themselves elected. He wanted to sue and asked his coop's attorney for help, but the attorney said no because he only works for the coop. (He got his own attorney and sued the three Shs for liable. A few Shs appeared in court for him to attest that they were told the lies, that were easily disproved, and the three Shs had to pay a hefty financial penalty.

A coop attorney works for the coop, plain and simple.

In my case as a board member I have written correspondence to the lawyer asking for explanation of board presidents "law expertise" & it has been over two months & no response from lawyer. I guess our coop lawyer does not know that he works for the entire board of directors and the shareholders as a whole.

Obviously, you did not read my paragraph from my original posting. This is the answer you are looking for. I have corrected some mistakes in quoting:

"Over the years, what I have objected from some ignorant (not to call them ILL-INTENDED board members) is their calls to the co-op counsel, insurance brokers or other professionals to consult [their] the particular board member's own point of view or TO raise issues that reflect their own point of view WITHOUT BEING DELEGATED BY THE BOARD TO DO SO. This is AS IMPRUDENT AS the PRESIDENT acting on his/her own. Unless a board member is empowered by the board to do the contacts and report back, individual actions send the signal of a weak, divided board or the wrong decision. Thus, to act as a board, all participate, all volunteer, all work in the measure of their talents and all live by the decisions of the majority; the minutes will reflect the desenting vote."

NOW, if you find that certain opinions of the president regarding legality are wrong, you challenge it in front of the other board members and request that the "legal opinion" be clarified with the co-op attorney. If you find the other board members to go with you, no big deal for the president to say, OKAY, let's consulted. WHO VOLUNTEERS to do the calling and report back to the board? Otherwise, to send an e-mail to the co-op counsel with the question with copy to all board members will do. If you have no e-mail, then the person who does have one will make copies of the co-op counsel's asnwer and distribute.

The case is closed!


AdC

I don't think that the lawyer only represents the President by law - according to New York State Law - It is the board, not an individual that makes policy - which makes sense because then why would you need 9 people and a vote - Our lawyer says he represents the board - however that is not true

Actually, this isn't correct.

The co-op's legal representative works for the entire Board. Generally, the Board will interact with the lawyer only through one person, in order to avoid confusion (and keep the bills low) -- but, for example, if the president and Board are at odds, and the president is in the minority, the legal agent must represent the majority's decision, not that of the president alone.

First, the president is the speaker of the board, but has no other power than being the speaker and sign contracts on behalf of the board. Of course, the president is expected to lead, to provide vision and to PERSUADE. The president cannot make decisions on his/her own that amounts to tons of money, although in emergency situations and run of the mill issues, he/she will be approving routine work.

One thing I learned from our counsel is as follows: "The Board serves at the pleasure of the shareholders; the directors including the president serve at the pleasure of the board." In other words, a president gets the vote of confidence from the board and his/her function is to serve the board.

A president shows his/her ignorance by taking major responsibility on his/her shoulder on behalf of the board. A president must learn the VIRTUE of PRUDENCE. When big money is involved, and actions may be questioned, a president should use his/her INTELLIGENCE AND PRUDENCE to pause and read the above definition. THEREFORE, those who advocate for e-mails, telephone calls, etc. will find fertile ground here: the PRESIDENT will not only CONSULT via these methods of communications what board member think, but will call for a face-to-face meeting. WHY??? Because a PRUDENT president wants dialog, discussion and a VOTE or resolution of the board before diving into the pool.

Over the years what I have objected from some ignorant (not to call them ILL-INTENDED board members) is to call on their own counsel, insurance brokers or other professionals to consult their own their point of view or raise issues that reflects their own point of view. Thi is AS IMPRUDENT AS the PRESIDENT acting on his/her own. Unless a board member is empowered by the board to do the contacts and report back, individual actions send the signal of a weak, divided board or the wrong decision. Thus, to act as a board, all participate, all volunteer, all work in the measure of their talents and all live by the decisions of the majority; the minutes will reflect the desenting vote.

AdC

Paid heed to this situation:

"The outgoing Board was ready to send an attoney's letter to the person about smoke and noise coming from his apt and decided to wait until the new elections. Now we have the problem shareholder on the Board.

Should we speak to the Board member first or send a letter? Can he even be on the Board if he is in violation of the house rules?"

1. Each time something like this happens nip it immediately. The worst thing boards do is do nothing. Silence has condemned the the "do nothing," "the nice guys/gals", "the uninvolved."

2. If the person was objectionable, bring it to the attention at a meeting, etc. Now, it is "tolerance" or become enemies. After all you all tolerated it for years and even allowed the person to be elected.

3. At this point, board members should discuss the issue openly with management as a witness and assume the consequences of how the person is going to take it.

4. If you are in majority, the person will have to comply. But probably will never cooperate and become adversarial and resentful.

Good luck!

AdC

totally agree with AdC. This kind of behavior must be nipped in the bud, and shown early on that it is not acceptable. Now the board , and the building, seems to be held hostage to this outrageously inconsiderate neighbor!

Just reporting back on new Board member with history of objectionable behavior. At our first Board meeting, the atmosphere was tense. No one wanted to lead the discussion about the noise and smoke (which has subsided considerably since he voted himself on the Board). A Board member took him outside before the meeting and seems to have gotten assurances of good-natured compliance. Could it be a new leaf? As new shareholders have moved into the building there has been a shift to Zero Tolerance and we think the Problem knows it. Also knows a lawyers letter was poised to go out. Any comments on how this was handled? Thanks all for your input on the situation.