Ok, then, you know you have seen it before - the board member you couldn't stand to have at a meeting as they were rude, insulting, crass and never really on-point. But, in what I would suggest is more of a failure in Governance 101, this board of directors of a homeowners association expended otherwise useful resources on what I would call an ambulance chasing attorney when they should have or could have easily taken care of a problem board member without any legal assistance.
I am sure and have witnessed the "difficult" board member syndrome. One board member who for whatever reasons gets elected on the board and turns-out to be someone who just doesn't play well with others. I recognize that nonprofit board members do not join a board to have a "bad" experience and that "church" polite is often the chosen modus operandi but when all "polite" efforts fail to move a member who is just not a good fit culturally or even humanly, formal action must be executed. And this is what by-laws should address. Processes for removal (with cause and a policy manual that can define "cause") as well as term-limits (yes, that may mean delaying the departure) should be in writing. But also, explicit core values and decorum expectations might be contained in a board manual. And the board orientation should also be an opportunity to explicitly specify what are acceptable behaviors, even language. And yes, the purpose of all this is not exclusion but inclusion.
So, the following story is a great case study in how everything can just go south as well as serve as a reminder that means for ending a traumatic experience in governing should be in-place along with the "will" of members.
Although his behavior might be "deplorable," a Commonwealth Court panel has refused to remove a director accused of making "boorish, insulting and sexist" comments to female colleagues on a homeowners association.
It is not the court system's role to intervene in such matters, Senior Judge James Gardner Colins concluded in the state court's opinion.
That ruling marks the second defeat for the Pocono Country Place Property Owners Association in its attempt to have Zbigniew "Joe" Kowalski booted off its nine-member board.
The group appealed to Commonwealth Court after a Monroe County judge refused to give Kowalski the heave-ho.
Pocono Country oversees a 4,500 single-family home development in Coolbaugh Township. Kowalski was elected as a director in June 2016.
When he took his seat, seven of the other eight directors were women, Colins noted. His colleagues claimed Kowalski almost immediately began uttering "insulting" remarks to and about them.
According to court filings, Kowalski sent emails calling his colleagues "dangerous," "cunning and conniving," "vindictive and spiteful" and "incoherent." He referred to one as having a nervous breakdown, accused another female director of ordering a dinner for a board meeting that was "too fattening" and complained that there were too many women on the body.
Afterward, his critics claimed, Kowalski sent emails accusing colleagues of being "Nazis," accused one of being a "pathological liar," and said two others were "poster children for...dysfunctional behavior," Colins noted.
Still, the judge observed, none of Kowalski's comments "were sexual in nature, as opposed to offensive and sexist, and nore of the comments contained threatening language. No claim was ever made or evidence introduced that Kowalski committed any physical assault, violent conduct, illegal or dishonest acts or financial misconduct."
Colins cited the county judge's finding that Kowalski's behavior did not create a hostile environment. Nor did it provide proof of fraud, dishonesty, financial misconduct or "gross abuse of authority" that would empower a court to remove Kowalski under the state Nonprofit Corporation Law that governs boards such as Pocono's, Colins agreed.
"Kowalski's descent into name-calling and insulting his fellow directors is unprofessional and deserving of criticism," the state judge wrote. "Judicial intervention in the governance of a nonprofit corporation by ordering removal of a director, however, is a drastic remedy that cannot be granted merely for undesirable or offensive behavior."
State law does contain a provision allowing a nonprofit board to remove a director whose behavior is so disruptive it impairs the board's ability to operate, he noted.
"We hold only that the type of conduct that can constitute proper cause for a board to remove a director is broader than that which can support removal of a director by a court," Colins wrote.