Colorado statutes state that a nonprofit corporation's corporate documents cannot eliminate or limit the personal liability of a director for the following: (a) monetary damages
for any breach of the director's duty of loyalty to the nonprofit corporation or to its members; (b) acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; (c) unlawful distributions of the corporate assets, including loaning corporate funds to a director or officer; or (d) any transaction from which the director directly or indirectly derived an improper personal benefit.
My question is about part c of the above, "or a knowing violation of law". Does this apply to regulatory statues as well are criminal statues? One example is the Colorado laws requires the annual budget be presented to the owners in a meeting where the owner would have the opportunity to veto the budget. Our board has decided to just present the budget at a board meeting instead of a membership meeting that would require notice be sent by mail and signs being posted announcing the meeting as required by Colorado statutes.
My understand is that a owner could take action to enforce the Colorado statutes by filing a lawsuit against the board asking the court to order the board to comply with the statute. I further understand that such a suit can be filed even if there is no direct momentary harm to the owner. I read some place that is the board is not following the state statutes or the association
governing documents, the owner is presumed to be harmed even if the harm can not be quantified by a monetary amount. I also understand that said owner would be entitled to reimbursement of their legal expenses if the court sides with them.
My question is if the court sides with the homeowner
demanding compliance to the regulatory statues, would that mean that the board members would be personally liable for not only the homeowners legal fees but also the legal fees the homeowners association spent responding to the law suit.
It appears to me that that the Directors and Officers insurance would not cover the board members in this case, because such a policy would be contrary to the state statute (the hoa
can not pay for a policy that indemnifies the board members against damges resulting in acting in bad faith). Is that correct?