What Apple's fight with the FBI has to do with your Board of Directors

Posted by Andrea Drennen, CMCA on March 18, 2016

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As we continue our National Ethics Awareness Month series, I want to turn your attention to the news, where a major national ethics debate is taking place.

No, I am not referring to the size of Donald Trump's hands. This is about a topic even closer to your heart (or your pocket): your iPhone.

The case details can be found here, but in a nutshell, the FBI has acquired the iPhone of a deceased terrorist. They have gotten a court order to compel Apple to create a back-door that will allow them to gain access to the phone, and Apple has refused. In fairness, Apple did give the FBI information they were able to access, including the iCloud files that had been uploaded from the phone 6 weeks earlier. But they have drawn the line at creating a back door to break into the phone itself.

As Apple has said, it's not that they CAN'T do it - they know that their engineers could create a solution that would allow the government to break into the phone. The question is one of ethics. Apple's argument is that they SHOULDN'T do it.

It comes down to the fact that creating a back door would not be limited to a single phone. By creating a back door, Apple would be providing the means to break into ANY iPhone. Apple's CEO Tim Cook stated that creating such a program would be the software equivalent to Cancer: "The only way to get information — at least currently, the only way we know — would be to write a piece of software that we view as sort of the equivalent of cancer. We think it's bad news to write. We would never write it." "No one would want a master key built that would turn hundreds of millions of locks ... that key could be stolen."

The Community Association Management industry is no stranger to ethical controversy. In fact, the majority of stories that make it into the media about community associations involve ethics in one way or another. In some cases, the ethical breach is obvious, and personal. Like an accountant or treasurer who uses community funds for personal gain, or a board president or manager who takes kickbacks from vendors. We already know these things are wrong. It's obvious. And while people may allow themselves to rationalize unethical behavior, in their heart, even they know it is unethical.

But sometimes, a board is faced with a less obvious moral dilemma. Let's take a recent case in which an HOA was vilified in the media. A young girl was battling leukemia. Her wish to the Make a Wish Foundation was to have a playhouse in her back yard. Following the rules of the HOA, the family submitted the architectural plans for the playhouse to the HOA Board. The Board evaluated the plans and determined that they did not meet the guidelines set forth in the community's governing documents.

Now at this point, we reach a fork in the road. The board could have bent: Most community association's governing documents grant the board the right to make a special dispensation in individual cases. The family could also have worked with the board to change the plans so that they did meet the guidelines. Had either or both of these things happened first, the issue could have been resolved quietly and peaceably, and it would have never graced the front page of Buzzfeed. Unfortunately, that's not the way the story played out.

Eventually, the Board and the family did reach a peaceful solution and little Ella was able to get her playhouse. But not before every media outlet in the country had their pound of flesh from the board, the community, the manager and anyone even remotely close to the situation.

If only we were a fly on the wall when that board had the meeting to discuss the plans that had been submitted. Because there is a larger moral and ethical dilemma here that the media blithely ignored.

The role of every board member is to act in the best interest of the community. It's called Fiduciary Duty, and it is the first, last, and most important purpose of every association board member. In the case of little Ella, it seems a no brainer to relax the rules. But in order to do their fiduciary duty, the members of the board had to consider the impact on the whole community, not only for that one change request, but for any architectural change request in the future.

Let's say for example that in the future, a man who lives in the community gets testicular cancer. To honor his struggle, his friends and family decide to build a large phallus statue in the front yard. Having ignored the rules in the case of the little girl's playhouse, could the board legally stand against the statue? Of course I have taken this scenario to a ridiculous extreme, but community association boards deal with ridiculous extremes on a regular basis. (and truth is always stranger than fiction).

Ethical dilemmas such as these are not obvious. There is no clear right or wrong decision. And, in the case of this community, their initial decision, even if it was ethically right, was extremely unpopular.

And that's the thing about ethics. It's hard. It requires you to think, not just through the present situation but through every possible variation in the future. Making an ethical decision can be wildly unpopular. But in the end, you have to be willing to uphold your fiduciary duty; to stand up in the face of scrutiny and have the hard arguments and think the tough thoughts.

In the end, you are responsible not just to yourself but to the entire community. Just be glad that your community isn't hundreds of millions of iPhone users.

 

Want to know more on the Apple vs FBI debate? Check out John Oliver's hilariously informative video on the subject. Warning: language may be NSFW.

 

 

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