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CA Board of Director's Ethics Policy Remains Controversial After Months of Debate

At recent meetings, the Columbia Association (CA) Board of Directors has held renewed discussions about their ethics policy. This is a continuation of a debate that has been ongoing since at least February of 2022. There have been multiple draft ethics policies produced by CA's professional staff, various board members, and outside legal consultants proposed for consideration by the board. This debate has taken place against a backdrop of an unusually high number of ethics complaints against board members and staff. This article attempts to summarize these issues.


Importantly, this article should not be interpreted as an accusation that any board member is acting in an egregiously unethical manner (previous articles have, however, questioned the board's honesty). This article is simply intended to provide information on the discussion around the ethics policy and relevant context.


Why the Ethics Policy Matters

An ethics policy helps organizations define rules of behavior that keep themselves out of sticky situations and gives confidence that the organization is acting in the best interests of its stakeholders - for CA, that means Columbia residents and, arguably, non-resident members of pools, gyms, golf, etc. Additionally, insurance carriers and lenders evaluate risk in part by evaluating organization's ethical policies and practices. A questionable ethics policy or failure to enforce it could result in higher insurance and interest rates thus leaving less money for CA to spend on pools, gyms, open space, and other amenities.


Background

While CA's ethics policy has been changed or updated multiple times in the course of the organization's history, the current debate seems to have its origins in the summer of 2021. Key events in the debate include:

  • Summer 2021; Removal of Alan Klein. In the summer of 2021 Alan Klein (Harper's Choice) was accused of an ethics violation, which was subsequently substantiated, and he was removed from his position as a member of the board of directors.

  • Spring 2022; Staff's Recommended Ethics Policy and Subsequent Rejection. Mr. Klein's removal sparked interest in revisiting the ethics policy and, at the direction of the board, staff - led by relevant Human Resources and legal professionals - presented a revised ethics policy in early 2022. At the end of the 2022 fiscal year (which ended in April 2022) the board declined to approve and implement the ethics policy. Former CA Board member, Jessamine Duvall (Hickory Ridge) who supported codifying that proposed ethics policy, speculated that the majority board refused to do so because it would have precluded anyone previously removed from the board of directors due to an ethics violation (specifically, Alan Klein) from being reappointed to the board in the future. Current CA Board Member Dick Bolton (Dorsey's Search) has previous denied this was the reason for his vote against approving the staff's ethics policy.

  • Late Spring 2022; Election of new board. Four director positions changed in during the 2022 elections. Particularly relevant to the debate on the ethics policy were the changes in Harper's Choice (where Alan Klein was narrowly reelected over Ashley Vaugh) and Hickory Ridge (where Jessamine Duvall lost the race to Brian England, who has a long relationship with Mr. Klein).

  • Summer 2022 - Present; Board-led drafting efforts. During the summer of 2022, the board decided that Dick Bolton (Dorsey Search) would lead the drafting of a new ethics policy. Over several months, various updates on this effort were provided and the board and staff displayed a general sense of frustration with the difficulty of creating a new ethics policy.

  • January 2022; Audit Committee Report. During the January 2023 CA board work session, the chair of CA's Audit Committee (who is not a member of the board of directors) presented a thorough report and recommendations to the board regarding its ethics policies and procedures. Multiple board members used the topic as an opportunity to air grievances about unspecified ethics accusations that had been made during this fiscal year. The board voted on to implement the Audit Committee's recommendations including establishing an independent panel or committee to take responsibility for investigating potential ethics violations by board members. Based on that vote, CA's staff reportedly acquired the services of an outside consultant to draft a charter for an independent committee responsible for ethics investigations (The Merriweather Post has reached OUT to CA for confirmation of this but has not received a response).


  • Spring 2023. Recently, during March and April meetings, a primary focus of board discussion is to finally approve at least one of the various ethics policies that have been drafted (described below). The urgency with which the board majority is now - at the end of a fiscal year with an ongoing election - treating this issue conflicts with sentiments several board members previously expressed when the board refused to approve the staff's recommended ethics policy in the Spring of 2022. For example, Brian England (Hickory Ridge) commented on a Merriweather Post article:


Multiple Draft Policies

Over the 14 months that CA's board has spent debating this issue, several drafts ethics policies have been produced. This list may be incomplete.

Version

Description

Current Ethics Policy

Consists of four separate policies. Three pertaining to behavior and conduct; one pertaining to investigations and accountability for ethics complaints.

CA Staff's Draft

The policy drafted by staff does no longer appears to be under consideration.

Bolton Draft

  • Consolidates and streamlines the three current policies pertaining to behavior creating a single "code of conduct" document.

  • Only applies to the CA Board and intentionally omits CA's staff

  • At least one version of this draft carved out exceptions to the conflict of interest policy.

Miles & Stockbridge Draft

  • Professionally revised draft based on Mr. Bolton draft.

  • Writing style is altered in multiple places for clarity and specificity (making it more of a "legalize" document)

  • Applies to the entirety of CA and not just the board of directors

  • Does not include exceptions to Conflicts of Interest

​Greenberg Draft

  • Modifies the current policy for investigation and accountability.

  • Changes the standard for initial acceptance and validation of an ethics complain against a board member.

  • Changes how complaints against the Chair of the board are handled.

Independent Ethics Committee Draft

  • Purportedly being drafted by an outside consultanting firm

  • Would alter the current ethics investigation and accountability process

  • Is not complete and has not been seen by the board yet

Controversial Issues

The various drafts and board discussions have highlighted several controversial issues that the board is debating:

  • Conflicts of Interest: There is disagreement whether or not a board member's involvement with Inner Arbor Trust (IAT) can constitute of conflict of interest. Multiple board members including at least Mr. Bolton and Linn Eagan (Town Center) have expressed an opinion, disputed by CA's staff and outside advice that IAT should be exempted from conflict of interest requirements.

  • Scope of the Policy: Mr. Bolton (and possibly other board members) want a stand-alone ethics policy that only applies to the Board of Directors instead of the entire organization (including staff). Others criticize this and worry it could create a double standard for the leadership of the organization.

  • Dissenting Opinions: Some board members, including at least Andy Stack (Owen Brown), have expressed concern that the proposed policies have overly-restrictive rules about what board members are allowed to discuss with the public. Specifically, the proposed policies could prevent board members from publicly expressing dissenting opinions from the majority of the board. In a privately-owned corporation, this type of restriction may be prudent; however, in CA's case, the board already holds its meetings in public and the board members are elected representatives and the public benefits from hearing them speak candidly.

  • Confidentiality of Ethics Investigations: Some members of the community believe the results of ethics investigations into board members should not be kept confidential. The potential benefits of making the results of an ethics investigation public are that it let the public make informed decisions when voting and it could help clear the names of board members who are falsely accused of ethics violations.

  • The Board's Involvement. There are multiple disagreements over the board's level of involvement in adjudicating ethics issues: whether there should be an independent committee to investigate ethics allegations made against board members, how ethics complaints are initially validated, and whether subjects to complaints should be involved with their resolution.

    • Independent Ethics Committee: Despite initially voting to support the Audit Committee's recommendation to establish an independent committee to handle investigations of board members, Mr. Greenberg's proposal, if approved, could supplant that vote. Proponents of establishing an independent committee, including at least Mr. Stack and Bill Santos (Wilde Lake) argue that an independent committee would be more objective and that forcing the board to investigate and judge their peers has created contention that makes other board business difficult.

    • Complaint Validation: When ethics complaints are initially made, they go through an initial evaluation to validate them and refer them for a full investigation. Mr. Greenberg's proposal would make the entire board decide whether to validate an initial complaint into a board member. This proposal could increase the risk that ethics complaints against board members are summarily dismissed without an investigation. Investigations are important, even when accusations are disproven, to provide a written record of relevant facts.

    • Subjects of Complaints: Several board members, including at least Ginny Thomas (Oakland Mills), believe subjects of ethics complaints should be able to participate in the investigation, discussions, and voting regarding their own ethics investigations. This would present clear conflicts of interest concerns.

Context

These discussions are being held after a contentious year in which there were multiple accusations of ethical lapses placed against the board. CA provided the following information in response to community questions of ethics investigations:

  • There have been four formal ethics complaints filed against board members

  • Not all of the complaints were investigated

  • Some of the allegations were substantiated

  • As of February, no remedial action had been taken in any case where the allegations were substantiated

Additionally, during public board meetings, multiple board members revealed that at least one of the complaints alleged wrongdoing of six current board members and, separately, multiple board members perceived many of the accusations being leveled were gratuitous.


Commentary

The board risks creating a weakened and/or ineffective ethics policy that leaves CA more vulnerable and ill-equipped to address egregious ethics issues in the future if it codifies some the more controversial ethics provisions described above.


Many board members are clearly upset about the number of accusations that have been leveled against the board this past year and clearly feel that the current ethics policy has been abused. Subsequently, those board members appear to be approaching the discussion about revising the ethics policy with the intent of preventing these same perceived abuses from occurring again. This approach of prioritizing what is convenient for individual board members while deemphasizing the overall impact decisions will have on CA and the community in the long-run, is consistent with the rationale the board has used previously to make important decisions. A better frame of mind to approach this debate is what a board member wants the ethics policy to be ten years from now when people they don't know or trust are sitting in the seats they now occupy.

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The scope of the ethics debate extends beyond the nuances of crafting policy and highlights the lack of accountability of CA Board members to sections of Maryland State Law governing Non-Profit Corporations and Associations.


There were at least two major topics this FY where board members both enabled and protected other board members who engaged in illegal conduct: 1) in the lead up to Lakey's resignation the board members held numerous closed meeting and neglected to disclose those meetings to the public in a timely manner. 2) the procedures to vote on IAT grant funds completely neglected the legal statutes regarding conflict-of-interest disclosures. In both cases, multiple members were warned in advance about the legal ramifications of their conduct, but…


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Checks and balances...


If we take this sentiment one level higher, we must concede:


"Legal standards only matter to the extent we choose to enforce them."


And those making the choices make all the difference.

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