Dear Condo Smarts: Our strata is a very large multi-strata complex with extensive gardens and pools. Our council recently discovered that an employee of the corporation, who was interviewed and recommended by the president, is in fact her brother.
At the time of the hiring, she insisted he was the best person for the job and that no one else could match his qualifications for landscaping, pruning and pond maintenance. He allegedly had extensive experience in pest control and the use of pesticides for our broad array of fruit trees.
This position pays a substantial salary, and we are very unsatisfied with his performance, but as long as this woman is president, we've been informed, we will never get rid of him. When he was hired, there was, at no point, any disclosure about their relationship.
Are there any conflicts here that could help us to cancel his employment? Wasn't our president in a conflict of interest? Dave W.
Dear Dave: Section 30 of the Strata Act is going to be your best tool in addressing this conflict. It says:
"A council member who has a direct or indirect interest in a contract or transaction with the strata corporation must (a) disclose fully and promptly to the council the nature and extent of the interest, (b) abstain from voting on the contract or transaction, and (c) leave the council meeting (i) while the contract or transaction is discussed, unless asked by council to be present to provide information, and (ii) while the council votes on the contract or transaction."
Your president should have removed herself from this action. A contractor or employee can generally rely on the credibility of council members when entering into agreements, but if he knew of the conflict, their agreement may also be in jeopardy.
There are many other potential conflicts where council members need to remove themselves. If a council member violates a bylaw or is commencing a court action or arbitration against the strata corporation, then he or she cannot be present while decisions are being made regarding those matters.
Also, council members cannot decide to pay themselves for acting on behalf of the strata, without the owners of the corporation approving the remuneration in the budget, bylaws or by a 75 per cent vote.
In a nutshell, a conflict of interest is created when an individual has an interest in the outcome of a decision where he or she may either directly or indirectly receive a gain or benefit. Hiring family members to work for the strata is an item best left for the rest of council to decide.
Your council -- without the president present -- may want to convene a meeting to review the contract/employee relationship and, if necessary, terminate or alter the agreement.
A word of caution, though. Whether this is an employee or contract relationship, B.C.'s employment standards may influence the outcome of your decision, so consult a labour relations lawyer if the matter isn't easily resolved. To recognize a person is not in conflict as a council member, it is beneficial to record in the minutes when a council member leaves the meeting to avoid a similar problem in the future.
Tony Gioventu is executive director of the Condominium Home Owners Association. Send questions to him c/o New Homes section, Times Colonist, 2126 Douglas St., B.C. V8T 4M2 or
by e-mail at [email protected]