As the events described herein give rise to personal liability on your part, you are hereby advised to seek legal counsel at your own cost and choosing to advise you on such matters.
As a Director, you owe the Association and its membership a fiduciary duty to act in good faith and in the best interests of all members. This unmitigated duty of loyalty requires that you put the Associations interests ahead of your own personal interests and passions. A director's failure to adhere to their fiduciary obligations can lead to personal liability for their unauthorized actions. More specifically, under California Civil Code section 5800, a volunteer officer and director of a community association is protected from personal liability only so as long as the director has adhered to all of the following requirements:
1. The act or omission was performed within the scope of the officer's or director's association duties.
2. The act or omission was performed in good faith.
3. The act or omission was not willful, wanton, or grossly negligent.
4. The association maintained and had in effect at the time the act or omission occurred general liability insurance and directors and officers insurance in minimum amounts which are prescribed by statute.
In accordance with Corporations Code sections 7210 and 7231, the board may delegate the management of the activities of the association, provided that the activities and affairs of the association shall at all times be managed and all association powers shall be exercised under the ultimate direction of the board.
Turning to the Hartmann Paper itself, you open the portended communiqué with the following salvo:
.......... (omitted for the reasons stated above)
You then go on to describe .....
(omitted for the reasons stated above)
Although you are not licensed to practice law in the State of California according to the official State Bar website (http://calbar.ca.gov) you then go on to provide your
misplaced and misleading personal "legal opinion":
.....
(omitted for the reasons stated above)
Finally, even though the new manager has not even arrived for her first day on the job you provide the following veiled threat as to what you apparently view at the litmus test as to the success of the expectation of her future performance of her duties:
........ (omitted for the reasons stated above)
It is without question that this diatribe was sent out by you, unilaterally and without authorization of your fellow Board Members. The acerbic and bitter discourse with which you choose to express your readily apparent and personal displeasure with the path chosen by your fellow Board Members to date as to the review of the Hartmann Project is clearly intended to undermine and derail the success of the Project.
This attack was: (1) not performed within the scope of your duties as an officer or director; (2) not performed in good faith; and (3) was willful, wanton, or grossly negligent. As such, the Association will hold you personally responsible for any and all damages which flow from this breach of your fiduciary obligations to the Association.
As a further matter, the Board of Directors will be meeting in executive session next Tuesday, May 6th to discuss how to address the expected damage caused by your careless and unintelligent communication. Additionally, the Board will consider how you will be censured for your actions to date. The Board may choose to formally discipline or censure you, ask for your resignation or move for a formal recall of your Director position. Furthermore, to avoid future damage and liability the Board may choose to exclude you from all future executive session discussions on this and other matters until you vacate your seat on the Board as you are clearly unable and incapable of fulfilling your executive session and fiduciary obligations to the Association at this time. Although you may address the Board at this executive session should you so choose, the Board will exclude you from all discussions and deliberations as to your censure as you are a conflicted director within the meaning of Civil Code section 5350(b)(1).
