Board should not ig­nore man­ager’s bad be­hav­ior

Los Angeles Times - - MARKETPLACE - By Donie Van­itzian

Ques­tion: Our as­so­ci­a­tion has se­ri­ous prob­lems with a fe­male man­ager as­signed to our ac­count by the man­age­ment com­pany. Man­age­ment will not re­move her, and the ma­jor­ity male board di­rec­tors say they “like her.” Own­ers who visit the as­so­ci­a­tion’s of­fice are sub­jected to her yelling and scream­ing; any­one protest­ing is threat­ened with calls to se­cu­rity if they don’t leave. She yells at own­ers dur­ing the board meet­ings’ open fo­rum, tak­ing time away from speak­ers.

In­tent on pre­vent­ing me from rais­ing is­sues as board trea­surer re­gard­ing re­serves and fi­nances, she re­peat­edly in­ter­rupted me, then be­came com­bat­ive and ar­gu­men­ta­tive against me in front of our cer­ti­fied public ac­coun­tant. She didn’t want me con­tra­dict­ing in­for­ma­tion she gave to the CPA. I asked her to stop in­ter­rupt­ing. She be­gan scream­ing, stick­ing her fin­ger in my face and or­der­ing me to leave. I thought she­was go­ing to at­tack me, but she stomped out and went into her of­fice, only to start throw­ing things at thewall. As a mi­nor­ity fe­male di­rec­tor, what can I do? An­swer: The­meet­ing’s statu­tory open fo­rum time be­longs to own­ers, not man­agers. Scream­ing, yelling and throw­ing things have no place in pro­fes­sional or adult be­hav­ior. All di­rec­tors should be con­cerned about a man­ager who rep­re­sents the as­so­ci­a­tion in this man­ner, be­cause she is a li­a­bil­ity.

A vic­tim of her tantrums could sue her and the as­so­ci­a­tion for as­sault, which is de­fined as an “un­law­ful at­tempt, cou­pled with a present abil­ity, to com­mit a vi­o­lent in­jury on the per­son of another” in Cal­i­for­nia Pe­nal Code sec­tion 240. It is not nec­es­sary for the man­ager to hit or touch some­one to be found guilty of an as­sault. In fact, un­wanted con­tact, di­rectly or in­di­rectly, could mean ad­di­tional li­a­bil­ity for bat­tery.

As a di­rec­tor it is im­por­tant to doc­u­ment and keep your opin­ions and rec­om­men­da­tions, re­gard­less of howthe ma­jor­ity votes, be­cause this board’s fail­ure to take pre­ven­tive ac­tion can be con­strued as rat­i­fy­ing the man­ager’s bad be­hav­ior. If the board won’t take ac­tion, you should ad­dress po­ten­tial le­gal prob­lems by mak­ing the as­so­ci­a­tion’s coun­sel aware of this prob­lem. Should the as­so­ci­a­tion get sued, your doc­u­men­ta­tion may aid your de­fense should in­dem­ni­fi­ca­tion be­come an is­sue.

Even if as­sault and bat­tery are not avail­able op­tions to of­fended and out­raged own­ers, claims for in­ten­tional in­flic­tion of emo­tional dis­tress or in­ter­fer­ence with the busi­ness of the as­so­ci­a­tion may ex­ist. She is interfering with the own­ers’ use, en­joy­ment and man­age­ment of a very valu­able as­set— their home.

If the man­age­ment com­pany won’t re­move this man­ager, ter­mi­nate the com­pany along with the risk. Un­der these cir­cum­stances, di­rec­tors stat­ing that they “like her” is not a ra­tio­nal busi­ness de­ci­sion jus­ti­fy­ing her con­tin­ued em­ploy­ment. Zachary-Levine, a part­ner at Wolk & Levine, a busi­ness and in­tel­lec­tual prop­erty lawfirm, co-wrote this col­umn. Van­itzian is an ar­bi­tra­tor and me­di­a­tor. Send ques­tions to Donie Van­itzian, JD, P.O. Box 10490, Ma­rina del Rey, CA 90295 or noexit@mind­spring.com.

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