Below is a helpful tip from the Davis-Stirling.com Newsletter by ADAMS | STIRLING PLC regarding board members and sobriety tests . . .
QUESTION: Can board members be asked to take sobriety/drug test? –Sam N.
ANSWER: You can always ask. The director, however, can always say no. This situation creates potential liability for the board as well as the affected director.
Personal Liability. If a director is drunk or on drugs, his/her judgment will be impaired when making decisions for the association. To avoid personal liability for their actions/decisions, directors must perform their fiduciary duties “with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances.” (Business Judgment Rule) That standard is hard to meet when a board member makes decisions under the influence of drugs or alcohol.
Potential Board Liability. If the board knows a director is under the influence and does nothing, it has the effect of condoning the director’s bad behavior. If the person gets into a fight and knocks out a homeowner in a board meeting or kills someone in a car accident leaving the meeting, the board’s knowledge of the director’s impaired state could be used against the board in subsequent litigation
Actions to Take. To protect themselves and the association, fellow directors should warn the impaired director to go home and sleep it off and never again appear at a meeting under the influence. If the bad behavior continues, the board should censure the director. If the director is an officer, he/she can be removed from office by fellow directors. Unfortunately, unseating him from the board is not an option unless the bylaws specifically authorize it.
Recommendation: your board has not already done so, it should adopt a “Code of Conduct” or “Ethics Policy” to address these kinds of situations. It gives fellow directors something to reference when talking to a wayward director and provide a stronger basis for a censure.
DISCLAIMER. The Davis-Stirling.com Newsletter by ADAMS | STIRLING PLC provides commentary only, not legal advice. For legal advice, you’ll need to hire legal counsel. You can hire ADAMS | STIRLING PLC; Keep in mind they are considered corporate counsel to associations only.
