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MShore
MShore, Attorney
Category: Legal
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Experience:  Negotiate, Draft, and Review many complex commercial agreements each year.
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My question is a bit complicated. I am on the board of my homeowner

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My question is a bit complicated. I am on the board of my homeowner association. I was recently elected in September 2012. Before this another homeowner was being sued by the previous board for having a home business with customers. The HO being sued asked me to write an affidavit (4/12) saying I had a home business also and wasn't being sued. I agreed. This HO then used my affidavit in a different lawsuit (descrimination lawsuit agaisnt the board) that I was unaware of. Now that I am on the new board they are telling me that I cannot be previe to any information regarding the other HO's lawsuit. I am not friends with this HO nor have I ever used her business. I feel like them calling me "vested interest" is not accurate!
I live in the state of Illinois. The only law that I can fid regarding this issue is (805 ILCS 105/108.60). I believe this relates more to someone who say is hiring a contractor or has a vested interest in the outcome. I do not care one way or the other of the outcome of her lawsuit. Maybe I am not reading this correctly! My question is since I signed this affidavit before I became a board member, and it was not use as it was intended for, can they exclude me from all information regarding this case? Is this not a violation of my rights as a board member who was elected by other neighbors? I am very upset mostly because there are 5 members on the board, if I am removed from this issue or voting it could then be dead locked. Can anyone please advise?
Submitted: 2 years ago.
Category: Legal
Expert:  MShore replied 2 years ago.
Thank you for the post, I am happy to assist you by answering your questions. Yes, you can be excluded because you may be called to testify on behalf of the HO,in which case you would be a witness for the opposing party and the HOA can ensure that you are not privy to information regarding its defense of the HO's suit. The HOA can ensure that as witness for the opposing party you not be privy to information that could damage the HOA's defense. Please let me know if you need clarification on why this is the case.
Customer: replied 2 years ago.
I am not sure about your answer. I am not for or against the HO in their lawsuit. If I were to be called as a witness I would be a hostile witness. I would need to be subpoenaed in order for me to goto court. My affidavit does not mention the HO's name or refer to her in anyway. How can they just say "uhm you're out" without giving me a reason. I think it must be more to it than that. Do I have to recuse myself and by which law does it say this? Or which case law is there a reference?Also the suit in which I wrote the affidavit has went thru arbitration and is basically closed. However, the HO used my affidavit in a case she filed with the state for discrimination which she lost and is on appeal. I don't know anything that can help her. I still do not see why I should be kicked off these cases.
Expert:  MShore replied 2 years ago.
Danielle, I completely understand your feelings.Even as a hostile witness once called you would have to answer truthfully and in so doing could reveal information that you were privy to by virtue of your role as a HOA member that that HOA does not want disclosed. Is it that the HOA is removing you, or excluding you from discussions regarding this matter? I ask because you reference "uhm you're out" but I do not know whether it relates only the the HO case or HOA matters generally. Also, have you read through the HOA's bylaws on board member removal? Because this is a matter governed by the HOA's governance docs and not case law or statute may be why you have not found any statutory authority. It is only if an HOA member in your position were to challenge the HOA's decision to exclude such member that it would a case, and even then if the HOA's governance documents permitted such exclusion the HOA member suing would not have a case as he/she agreed to be bound by such rules/terms when accepting the seat on the Board.
Customer: replied 2 years ago.

I have been reading all day trying to find something in our Dec laws regarding the removal of a board member. There is nothing. Not one single word. They are asking me to recuse myself only on this one HO issue because my affidavit was listed as an exhibit in the HO discrimination lawsuit. I did not give the HO permission to use it and honestly, all it say is that I have a home based business with customers. This other HO is not my friend nor do I conduct business with this HO. According to the law referenced above it states I must have a vested interest on the outcome of the suit. I feel I have neither. I do not think they can exclude me from emails or meetings regarding this issue. What legal leg do I have to stand on. I am not listed as a witness in the HO case nor am I willing to be. They are saying that I should just abstain. However, I do not agree and am desperately searching for case law (because the law is so vague) to plead my case. Is it a violation of my rights as a board member to exclude me from discussions regarding this closed arbritration (which the HOA has won then the state discrimination suit HOA won also but the HO is appealing the discrimination suit) case?. I am hoping that you can help me with an answer that supports either them or myself. Please I am not a lawyer but I do not want to be pushed around either. What can I say to the HOA and the attorneys on my behalf?

Expert:  MShore replied 2 years ago.
To the HOA you can challenge the assertion that your recusal is required by the Board's bylaws, if silent on this issue they would not have the ability to exclude you. The rights of the HOA to exclude you must be based on the internal governing documents. Though the HOA may not like that you are involved, unless and until it enacts a bylaw to exclude those in your position, it cannot do so.
Customer: replied 2 years ago.

Thank you for your quick response. I believe I can use this information. Thank you! I hope I can contact you again if another issue arises.

Expert:  MShore replied 2 years ago.
Thank you Danielle, please remember to positively rate my answers. Feel free to contact me in the future should you need additional guidance.
MShore, Attorney
Category: Legal
Satisfied Customers: 25285
Experience: Negotiate, Draft, and Review many complex commercial agreements each year.
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MShore
MShore
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Negotiate, Draft, and Review many complex commercial agreements each year.