excluding hce from safe harbor in a board res

I have a plan with 3 partners and a few nhce

3% flexable SH to all ee's.  Plan does not exclude HCE from the safe harbor.  Plan is Top Heavy

they would like to exclude one partner from receiving the safe harbor.  Can you exclude one HCE/Owner from receiving safe harbor in a board resolution and still have safe harbor status?

You must follow the terms of the document. If the document excludes that person, you're fine. Otherwise, they have to get it.

If the resolution is written in the form of an amendment to the plan and is executed timely (before the plan year begins), then that individual can be excluded.  Basically, you need an amendment prior to the time he becomes entitled to a SH contribution.  I have seen board resolution that would easily qualify as an amendment, though our method provides an actual amendment to the plan AND a resolution to be adopted in addition.