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CarolR11


Posts:0


08/25/2012 10:21 AM  
Me again.

A few years ago because of a handful of incidents, our Board, following the proper CA procedures, made a rule that if residents or their invitees curse, shout, harass, try to bully, any of our staffers, the unit owner would be immediately called to hearing and potentially fined $100. The incident requires corroboration.

A new owner here asked me yesterday--in a friendly way-- whether this rule violates people's rights to free speech in the USA. I replied that our staffers need to go about their tasks without fear of residents or others berating them. I also mumbled something about the private realm being different than the public realm.

We have 4 janitors here 8 hours a day each, 2 security officers on duty at all times (but only one from 2-8am), a chief and an assistant engineer M-F, 8-5, and a general and assistant manager, M-F 8:30-5:30. So there are quite a few visible "targets."

I haven't looked into the topic, but will today.

I and other board members certainly would understand it if something unexpected and bad happened to a resident, say the automatic gate malfunctions bashing into a car and the driver yells at the kiosk officer. So, I'm not talking about extreme examples.

What are your opinions??
LarryB13
(Arizona)

Posts:2464


08/25/2012 1:54 PM  
The first amendment rights prohibit the government from abridging free speech. Your association is not the government so first amendment does not apply here.

A person may contract away his rights if he wishes to do so. My question would be where in your CC&R's it says that by purchasing a unit in your condo that the purchaser agrees that the association may limit what he may say? Your declaration is a notice to the buyer/owner of what he may do with his property. If there is nothing in the declaration granting the association the right to control speech, by what other legal means has the association obtained that right?

Condo boards always remind me of the adage that "To the man with a hammer, every problem is a nail." The board has certain powers (the "hammer") to control some aspects of condo living and soon begins to try to fix every problem ("the nails") with a rule whether they have the authority to do so or not.

What's next on the agenda for your board? Wear white after Labor Day and get hit with a $50 fine. Fines for failing to take one's hat off in the elevator or leaving the toilet seat up?

The way I read your post is that if I order a pizza from my fifteenth floor condo and the deliveryman gets into an argument with a security guard down in the parking lot, I could be fined $100 because the driver was my invitee. To make matters worse, the hearing would be held immediately so my $100 pizza will be stone cold by the time I get to eat it.
JohnC46
(South Carolina)

Posts:4124


08/25/2012 2:15 PM  
It is quite common in "member owned" places for a member to feel like they own the place and all employees work for them so they can dress down an employee. Early on in life, I was called before the discipline committee at our member owned, private club because I had dressed an employee down. I was politely informed we did not talk to our "staff" like that and in the future if I had an issue with a staff member, I was to dicuss it with a memmber of our house committee not the staff member. I learned.

Maybe your owners have to be reminded that employess work for the BOD, not the individual owners and the BOD will handle all employee issues and that repeated rude behaviour toward "staff" will not be tolerated and one could be fined for such.

Hope this helps.


BruceF1
(Connecticut)

Posts:2480


08/25/2012 3:11 PM  
Carol,

I think your board is skating on very thin ice here.

The problem is, this is the very thing civil rights organizations love to challenge. You don't want to become a national news story.
CarolR11


Posts:0


08/25/2012 3:30 PM  
Thanks, Larry. I did poke around a little online and felt better about my reply to the new owner, which your response says better: While the US government may not restrict rights to free speech, private associations may, as John's example illustrates so well.

Our Rules & Regulations are one of our governing docs per our CC&Rs. Per Davis-Stirling, Boards may add rules, but must discuss them first at an open meeting, then send out the proposed rules to Owners for a 30-day comment period. When the Board meets again in an open meeting to consider implementing (or removing!) rules, it takes the comments into account and then votes.

About four years ago, an ad hoc Rules Committee reviewed all of the rules. There were some we removed as unreasonable or unenforceable; for instance, no one was supposed to use the 2 stairwells in each of our 2 high rise towers except in an emergency. No one was allowed to bring anything made out of glass to the BBQ area, which is next to but separated from the pool area. There were a couple of other similarly unreasonable ones that we eliminated, including the prohibition against any kind of floatable toys in the pool except for water wings.

We also added a few including the prohibition against shouting at and inappropriate behavior towards staff due to a rash of ugly incidents witnessed by many at that time. No Owner objected to implementing that rule during the comment period.

There always has been a rule here against shouting and other loud & noisy behavior as there is in most high rises or other settings where folks live very closely to one another. In a sense, shouting at staff expands that rule. As with residents who have a right to the peaceful enjoyment of their homes, staff should be treated with civility so that they can peacefully go about their daily duties. Staffers are directed by management to politely refer any complaints to them (the P.M.) and we've really have very few problems along those lines since the rule was published--so I don't think our gate attendant would get into an argument with the pizza guy.

We have a few rules that involve an immediate call to hearing if violated, not a hearing held immediately. "Immediate" in this case just means without an initial first "courtesy" letter, but still requires 15 days written notice before the hearing per CA civil code.

CarolR11


Posts:0


08/25/2012 3:30 PM  
Thanks, Larry. I did poke around a little online and felt better about my reply to the new owner, which your response says better: While the US government may not restrict rights to free speech, private associations may, as John's example illustrates so well.

Our Rules & Regulations are one of our governing docs per our CC&Rs. Per Davis-Stirling, Boards may add rules, but must discuss them first at an open meeting, then send out the proposed rules to Owners for a 30-day comment period. When the Board meets again in an open meeting to consider implementing (or removing!) rules, it takes the comments into account and then votes.

About four years ago, an ad hoc Rules Committee reviewed all of the rules. There were some we removed as unreasonable or unenforceable; for instance, no one was supposed to use the 2 stairwells in each of our 2 high rise towers except in an emergency. No one was allowed to bring anything made out of glass to the BBQ area, which is next to but separated from the pool area. There were a couple of other similarly unreasonable ones that we eliminated, including the prohibition against any kind of floatable toys in the pool except for water wings.

We also added a few including the prohibition against shouting at and inappropriate behavior towards staff due to a rash of ugly incidents witnessed by many at that time. No Owner objected to implementing that rule during the comment period.

There always has been a rule here against shouting and other loud & noisy behavior as there is in most high rises or other settings where folks live very closely to one another. In a sense, shouting at staff expands that rule. As with residents who have a right to the peaceful enjoyment of their homes, staff should be treated with civility so that they can peacefully go about their daily duties. Staffers are directed by management to politely refer any complaints to them (the P.M.) and we've really have very few problems along those lines since the rule was published--so I don't think our gate attendant would get into an argument with the pizza guy.

We have a few rules that involve an immediate call to hearing if violated, not a hearing held immediately. "Immediate" in this case just means without an initial first "courtesy" letter, but still requires 15 days written notice before the hearing per CA civil code.

CarolR11


Posts:0


08/25/2012 4:45 PM  
Interesting, Bruce. So you're thinking that the shouter could argue her/his civil rights to free speech were violated?

I, just now, also am thinking that a staffer could sue us if we knowingly permitted, let's say, Mr. A. to repeatedly insult a custodian. I believe we could be accused of condoning a hostile workplace environment, or some such. But I don't know about these matters.
BruceF1
(Connecticut)

Posts:2480


08/26/2012 4:35 AM  
Posted By CarolR11 on 08/25/2012 4:45 PM
Interesting, Bruce. So you're thinking that the shouter could argue her/his civil rights to free speech were violated?

I'm thinking of news stories I've read about people suing their former employers because they were fired for saying something or expressing a political opinion on Facebook that their former employer didn't like. I'm thinking of news stories I've read about parents suing the school administration because their kid was suspended from school for wearing a t-shirt some teacher didn't like, or for some slogan scrawled on a banner displayed on a building or fence across the street from the school. I'm thinking of how the ACLU often manages to get involved in such things. I'm thinking of how the media sometimes seems to take delight in trying the employer or the school administration in the court of public opinion. I'm thinking maybe someday I'll read about some condo association that is being sued by a homeowner because the association tried to fine him for saying something that a maintenance employee didn't happen to like.
MelissaP1
(Alabama)

Posts:4854


08/26/2012 9:50 AM  
This isn't a first ammendment right to free speech issue at all. It's a police issue. If someone is yelling, cursing, and acting in a threatening manner there are laws against that. Call the police or ask the person to calm down to collect their thought if they are just passionate about something. You can express your words anyway you want but you can't use them as threats or cross a physical line with them.

You basically have set up a "cussing jar" for your HOA. Nothing more or less than that. That is how I would address the issue. Put a quarter in for every "F" word...etc... However, call 911 when the person goes for your throat while saying those words.... Put some common sense to this situaton and stop looking at the consitution of the USA for (*&*^*& sake!!!

Former HOA President
BruceF1
(Connecticut)

Posts:2480


08/26/2012 10:25 AM  
Posted By MelissaP1 on 08/26/2012 9:50 AM
This isn't a first ammendment right to free speech issue at all.

Says you. However, those who file such suits happen to think it is. That's my point. I'm not saying I condone abusive language or behavior. I'm simply saying there are those who will try to make a federal case out of it. Preach to them. If people always agreed, we wouldn't need civil courts, now, would we?

So counter sue. Regardless of who wins, negative press doesn't do any homeowners association any good.
CarolR11


Posts:0


08/26/2012 10:29 AM  
Bruce wrote: "I'm thinking maybe someday I'll read about some condo association that is being sued by a homeowner because the association tried to fine him for saying something that a maintenance employee didn't happen to like."

Among all of the examples that you gave, Bruce, the above quote seems to be the only one that even remotely fits our rule. But our rule is about shouting at staff and there must be a witness. So if a resident instructs a custodian to dust the baseboards in the lobby, the custodian could politely decline saying it's on her schedule for tomorrow or quickly do it if it didn't interfere with her assignments for that day.

Our rule, though, would protect that staffer if the resident started shouting at the custodian about the quality of her work and that loud, noisy & obnoxious behavior was witnessed. Even in that case, all of our staffers are trained by the PM to encourage the complainer to see management with their concerns. If the resident persists, the staffer is directed to walk away.

The other side of the, I guess, ACLU coin would be if our HOA's Board permitted staff to be shouted at, called names or otherwise insulted. I still haven't looked it up, but I think that the staffer could claim that she had to quit her job and lose income because of a "hostile workplace," and that neither the PM nor the Board did anything to prevent the troubling behavior.

When there had been some incidents about four years ago, one target was our then-Assistant Mgr., who was young, of Asian descent, and very petite. The behavior towards her was shouting & profanity (but not threats) by a big, male, caucasian owner looming over her desk. So, the danger to our HOA could've been claims that involved both gender & race. (P.S. the woman now is the PM of a 90-unit downtown high rise.)

Thanks for your thoughts, Melissa. So far as I know there have never been any threats against staff--verbal or otherwise. If there were physical threats, of course the police would be called. And I don' think there's a need for a cussing jar as, since the gaggle of incidents a few years back, we haven't had reports of profanity directed at staff.
BruceF1
(Connecticut)

Posts:2480


08/26/2012 11:24 AM  
Carol,

I hope you understand I'm being the devil's advocate here. As I said earlier, I don't condone abusive language or behavior. I've seen enough of it in my day, usually by a disgruntled customer yelling and cursing at some poor employee who is merely doing his or her job as instructed. It's embarrassing to witness, even when you're not involved other that as a bystander. There will always be people who will be like that. I just wonder, though, how far we can go to try to control other people's behavior. I guess we won't know until we puff that last breath of air into the balloon and it breaks.
LarryB13
(Arizona)

Posts:2464


08/26/2012 12:14 PM  
Carol,

I have some serious doubts about whether the association can regulate its members thoughts, emotions, and speech. What does your board rely on for its authority to do so?

I just took a quick look at Davis-Stirling.com and found this definition of operating rules:

"'Operating rule' means a regulation adopted by the board of directors of the association that applies generally to the management and operation of the common interest development or the conduct of the business and affairs of the association." Civil Code §1357.100.

Your no-cursing rule does not pertain to the management or operation of the development nor does it pertain to the conduct of the business and affairs of the association. The rule pertains entirely to how members may speak. And not only members, but their invitees as well.

As to the hostile work environment, I have never heard of a case where a worker prevailed because non-employees cursed at them. If that were grounds for a lawsuit, then every telephone solicitor, bill collector, and door-to-door salesman would have a case. Police officers would have a field day. "Your Honor, it was a hostile environment. Bank robbers were shooting at me!" And firemen: "Your Honor, they made me go into burning buildings!"
CarolR11


Posts:0


08/26/2012 5:18 PM  
As noted earlier, Larry, our HOA and numerous others have rules against any loud talking, shouting, etc. during the day, but esp. after 10PM. It. obviously isn't an "operating rule" here or elsewhere. It falls in the category of noise nuisance. We, and perhaps others at this site have rules against nude sunbathing & swimming in the pool area. So the "operating rule" phrase doesn't apply just as it wouldn't to our rule against incessant dog barking.

Our CC&Rs and many others, which have been mentioned at this site make unit owners responsible for the behavior of their lessees, invitees, etc., etc. The owners are the ones who're called to hearing not their dog walker who didn't notice the dog peeing in the elevator--or didn't care.

Now living in the wide open spaces, these rules would be ridiculous, but they make sense in a densely populated high rise condo community. And in high density neighborhoods like ours, people out in public engaged in loud ranting or arguing also can be cited for "disturbing the peace."

While not every staff member is a superb worker, most are very good and most work diligently. It benefits the entire HOA membership to keep them and to not have turnover of trained workers because of the undeterred oafish, ugly behavior of a few as happened in the past. (We have no direct employees.) The Board's job is to protect the HOA's assets, and clean premises, well kept grounds and competent mgmt. helps us meet that goal.

I cannot imagine why you bring up "thoughts" and "emotions," which I and I'm sure no one in our community wants to "control." These thoughts and emotions can be expressed in writing to the board or management, on bumper stickers on the cars in our garages, on a banner or sign in a resident's window. But they may not be shouted at staffers 3 inches from their faces. If this happened near one of our security officers or managers, the jerk would certainly be asked to step in a office to calm down, or, in a very nasty case, asked to leave the area.

Your comparison of people who work in HOAs with the occupations you list is off base. The fire fighter attempt was completely flawed given that the "they" who made someone go into a burning building was a supervisor, not a "non-employee."

KellyM3
(North Carolina)

Posts:1094


08/27/2012 7:26 PM  
The board has the responsibility for protecting employees under its direction from harassment. It cannot be passive and, besides, complaints should be directed to the HOA board and not the employee. Sure, a resident may shout at a janitor and the board can direct the janitor not to serve the area around the property until the behavior ceases...and it will cease. Otherwise, you're ordering a paid employee into a hostile work environment.

I'd take my chances with the blowhard property owner over an employee with an easy legal case against the entire community given the documented on-the-job abuse.
CarolR11


Posts:0


08/28/2012 11:06 AM  
Thanks much, Kelly. I really hadn't thought about the topic till our new Owner asked. But I reached the same conclusion that you wrote so am glad to see some support.
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