Is it possible to have a non-financial conflict of interest on a co-op board?
I'm on my co-op board, and a fellow board member thinks I should recuse myself from an issue involving the super because the super and I have a personal conflict. But can it be legally considered a conflict of interest if my involvement in the matter is non-financial?
"If you were the hapless victim of someone else's malfeasance, why should you lose your voice?" says Ian Brandt, a partner at the firm Wagner Berkow, a real estate law firm representing co-op and condo boards. "The law only requires board members to disclose potential financial conflicts, to eliminate self-dealing."
Board members have long been required to disclose potential financial conflicts of interest and recuse themselves from voting on relevant matters. So for example, if you own a flooring company and the building wants to replace some floors, the board can choose to use your company, but it should be because your prices are competitive with other companies', not because of your status as a board member, and you shouldn't be involved in the decision-making. A recently passed law adds the further requirement that boards report potential conflicts to their buildings annually, and that the board members get a copy of the state law governing conflicts annually as well.
Beyond that, any animosity that you have over, say, the super playing loud music late at night outside your window, is not legally relevant to the board's decision-making process, Brandt says.
"When you're talking about interpersonal conflicts, you're getting into thought police stuff," he says, "because how can someone be unbiased about what goes on in the building they live in?"
Still, Wagner Berkow partner Steve Wagner points out, you should make sure you're acting in the building's financial best interest in the matter involving the super, and not out of animus or some discriminatory motivation.
"You have a fiduciary responsibility to the building as a board member," he says. "No one should be able to argue that your vote was driven by animus, or that you were discriminating against a federally protected class of people."
If there's a question in your mind about whether your vote is what's best for you over what's best for the building, you should recuse yourself, but again, there is no standard for anything constituting a conflict of interest other than the financial one.
Ian Brandt is a partner at the New York City real estate firm Wagner, Berkow & Brandt. To submit a question for this column, click here. To arrange a free 15-minute telephone consultation, send Ian an email or call 646-780-7272.
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