In Part 1 of Communicating in a Crisis, we discussed ways community association board members can define a crisis, how they should prepare crisis communications, who should put forth these communications and by what means they should be distributed. With those topics covered, we now must move on to perhaps the most important part of this discussion - what these pieces of communication should - and shouldn't - say.
Board members need to be careful when drafting crisis communications and remember to ask themselves a few questions prior to sending things out. Keep in mind that making wrong choices here can sometimes unintentionally create a larger crisis than was the original issue at hand.
What Crisis Communications Should and Shouldn't Say
Two things that board members should keep in mind when distributing communication to the membership are libel and slander, which fall under the larger umbrella of defamation. Libel is defaming someone in writing while slander is defaming someone verbally - both require certain elements to be proven in order to establish the offense has occurred. The main things that must be proven are that the statement made was false and that it caused measurable harm to someone.
Leave out Identifying Factors
How do things like libel and slander relate to communications put forth by association board members? A particularly relevant example would be if someone in a community is reported to have Covid-19 and there were factors present that prompted the board to notify the community members. Let's say a communication goes out and identifies the person potentially infected, but it turns out that it isn't true, and the person does not actually have Covid-19. The communication in this example easily falls under libel and it doesn't take much to prove that it caused the person damages. The bottom line is that board members never want to identify a person or give any identifying factors in a piece of crisis communication that is being distributed to the association membership - doing so is likely to only cause problems for the board.
Libel & Slander Against Board Members
As board members, you've perhaps experienced a community member saying or posting something online about you that was unflattering and/or untrue. Do you have any recourse in these situations? Once again it depends on the circumstances and if you can prove that you sustained actual damages (most often monetary ones) due to this action.
Let's look at another example. An association member has said that President Dan lies constantly, and he lied about “ABC”. Well maybe that's true and maybe it isn't - for the sake of this example we'll assume that it isn't. The next thing to consider is in what manner this statement was communicated to others. If this was something said at a private dinner party, you wouldn't have much of a case for slander as it would be very difficult to prove that this caused damages to Dan. Though this may hurt Dan's reputation in his community, he is a volunteer board member and if this statement causes him to not be voted in for another term on the board, he hasn't lost wages or anything measurable. But what if Dan owns a local newspaper and the statement accusing him of lying is published in a competing newspaper as an op-ed? Then Dan has potentially lost clients, business relationships and some of his readership, thereby causing him to lose money. That is when it becomes libelous and damages can be proven.
What Protections do Board Members Have Regarding Communications?
In most cases, an association’s documents and their state's nonprofit act will alleviate board members from some liability should an issue arise with a communication they've put forth. Documents and state statutes do not, however, relieve board members from responsibility for gross negligence. In being a board member, you have a fiduciary responsibility to the association to act reasonably when making decisions. If you don't know what to do or say when a potential crisis hits your community, the best thing to do is seek legal counsel.
Three Questions to Consider
When facing a crisis situation, there are three questions board members should ask themselves as they go about sending communication to the membership and mitigating the issue.
1. What is the association's obligation to the membership? Again, using Covid-19 as an example, you are of course not responsible for making sure everyone stays virus-free. You're not healthcare professionals and cannot ensure people's safety from the virus. However, you are responsible for keeping common areas safe and clean. So, let's say one of your pool attendants has contracted the virus. What is the board's obligation then? It would be to close the pool, let the membership know that someone has the virus (but remember, no identifying factors), make sure the pool area is properly cleaned and sanitized and make sure the attendant is no longer working until cleared by a physician. A more cut-and-dry example would be if a hurricane hits and causes a tree to fall over on a community sidewalk. What is the board’s obligation? To send out a communication informing the membership of the fallen tree, letting them know it’s being handled and then get the tree removed as soon as possible.
2. What will happen if we don't mitigate the problem? Let's go back to the Covid-19 example above – say the board knows the pool attendant has Covid but doesn't say anything to the membership. If someone else finds out and tells others in the community, you've got a problem. Making a communication ahead of time that gives members necessary information allows them time to make their own decisions and minimizes the association's exposure to liability. One of the main purposes of communicating in a crisis is protecting the association as a whole which goes hand in hand with ensuring safety and protecting the membership.
3.How can boards and associations minimize liability? This one is simple - you want to mitigate issues as quickly as possible and you want to let the membership know what you're doing to remediate the situation and prevent further damages.
Don't Inadvertently Create a Crisis!
Unfortunately creating crises is rather easy to do, even for the most well-intentioned board members. A great example that is relevant today would be an association suddenly deciding to enforce sign restrictions even if they haven't done so in decades. Why would that be a big deal now? It's an election year. Something as innocuous as deciding to enforce sign restrictions could be taken as the board siding with one political party or cause versus another and create anger and tension among the membership.
An additional thing board members should avoid is engaging with the membership on social media. Don't ever communicate rule changes (like in the example above) via Facebook or any other social platform - that opens the communication up for commenting and allows for things to potentially get nasty and accusatory.
It is recommended that owner’s associations avoid community-sponsored social media pages. Though you cannot stop a community member from creating their own page for the community, it is not a good idea to have one that is sponsored or run by the board. And, if you do come across something posted on one of these platforms that needs to be addressed by the board, you should never respond on the platform itself. If a post or comment is made on social media and the board feels a response is warranted, they can distribute communication to the membership stating that “XYZ” has been brought to their attention and they plan to handle it or the statement is false, whatever the case may be. Again, remember – don’t include any identifying factors in these communications that will allow members to figure out the identity of the poster or people involved in the situation in question.
The best way to avoid creating a crisis is to get some professional or legal advice when you know you have a hot button issue to deal with. If you would like to discuss an issue your board is dealing with or have questions about any of the information in this article, please reach out to your board's attorney or your CAMS Community Manager for trusted guidance. You can also find an abundance of helpful resources in your Board Member Toolbox.
Mike Stonestreet, CMCA, PCAM, AMS, is Founder/Co-Owner of CAMS (Community Association Management Services). CAMS began in 1991 with Stonestreet and a few employees in a small office in Wilmington but has since grown to over 300 employees serving eight regions across North and South Carolina.
His current role at CAMS focuses on mergers and acquisitions, culture alignment and high-level business relationships. Stonestreet is an active member of the NC Chapter of the Community Associations Institute (CAI) and has spent time on their board of directors, serving as the chapter President in 2019.
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