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Subject: Displinary Hearing Primer
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JosephH6
(California)

Posts:4


05/11/2020 12:12 PM  
Hello: Can anyone offer any advice on how to manage a disciplinary hearing for an ongoing CCR violation? As a new Board president, who is all new to this, I want to make sure I am running the hearing properly. I have an HOA management company (Associa) that helps manage the HOA. Should I let them facilitate?

Also, I live in California.

Any advice would be appreciated.
MarkW18


Posts:1067


05/11/2020 12:24 PM  
Being your management company is the largest in the world, I would seek their guideline, being you are new and all.
KerryL1
(California)

Posts:7217


05/11/2020 12:52 PM  
Agree with MarkW, though, Joseph, you should not mention real names on this forum. ( see "Our Posting Rules.")

Do you have an onsite Property Manager (PM)? Meet with her/him who'll be able to answer your questions. There's a pretty standard way to hold a disciplinary hearing. Meanwhile, what do your documents say?? Do they include a Schedule of Fines?? You need to learn your docs? You might find materials about hearings in your Bylaws or Rules & Regs. You also should find info in the annual budget letter that goes out to owners and is probably prepared by your Mgmt. Co (MC). there's a requrienmt that info about fines, hearings, etc be included.

KerryL1
(California)

Posts:7217


05/11/2020 12:53 PM  
Agree with MarkW, though, Joseph, you should not mention real names on this forum. ( see "Our Posting Rules.")

Do you have an onsite Property Manager (PM)? Meet with her/him who'll be able to answer your questions. There's a pretty standard way to hold a disciplinary hearing. Meanwhile, what do your documents say?? Do they include a Schedule of Fines?? You need to learn your docs? You might find materials about hearings in your Bylaws or Rules & Regs. You also should find info in the annual budget letter that goes out to owners and is probably prepared by your Mgmt. Co (MC). there's a requrienmt that info about fines, hearings, etc be included.

SheliaH
(Indiana)

Posts:3224


05/11/2020 2:17 PM  
The Davis-Stirling website (it's run by a HOA law firm) has all sorts of useful information you can use - start with this one and then search to your heart's content: https://www.davis-stirling.com/HOME/Due-Process-Defined

Are there former board members you can talk to see how the hearing was done? I'd talk to them as well, perhaps asking what they'd do differently (or not) to ensure a fair and complete process

I'm not in California, but for what it's worth, here's one person's opinion:

Since there's a disciplinary hearing, I assume you've already sent a notice to the homeowner regarding the time and date. You may want to set a deadline by which he/she should contact the board about rescheduling if necessary. I think this should be done in writing or through a phone call to the property manager (just be sure the property manager forwards the request to the board in time).

You may want to designate one Board member to present the association's side - everyone else should listen and take notes. Start with a recap of the violation - when and how was it discovered, the specific section in the CCRs that was violated, when letters were sent and the homeowner's response, if any. You should be able to provide dates on which things were done, along with testimony by witnesses (if any) and other evidence like photographs (date and time stamped preferred).

Before you start, remind everyone this is not the time or place for name-calling cussing, threats and other bad behavior. Do not interrupt while others are talking, turn off the cell phone (I wouldn't even set it on vibrate, otherwise, the person will have to leave the room to take the call). This applies to board members as well as the homeowner. If this is an executive board session, people who AREN'T witnesses shouldn't be there.
PaulJ6
(New York)

Posts:860


05/11/2020 2:43 PM  
Be sure to follow your governing documents (bylaws, Certificate of Incorporation, etc.) when you try to impose fines on someone. My HOA tried to fine me for some nonsense, but it didn't follow procedures required by the bylaws. Result? The fines were withdrawn and the HOA got sued.
MarkW18


Posts:1067


05/11/2020 2:51 PM  
Posted By PaulJ6 on 05/11/2020 2:43 PM
Be sure to follow your governing documents (bylaws, Certificate of Incorporation, etc.) when you try to impose fines on someone. My HOA tried to fine me for some nonsense, but it didn't follow procedures required by the bylaws. Result? The fines were withdrawn and the HOA got sued.



You do know that suing your HOA is the same as suing yourself?
AugustinD


Posts:3364


05/11/2020 3:04 PM  
Posted By JosephH6 on 05/11/2020 12:12 PM
I have an HOA management company (Associa) that helps manage the HOA. Should I let them facilitate?
No. In my opinion, such a hearing is not a situation where the manager should either speak for the HOA or act as some kind of "judge."

Posted By SheliaH on 05/11/2020 2:17 PM
Since there's a disciplinary hearing, I assume you've already sent a notice to the homeowner regarding the time and date. You may want to set a deadline by which he/she should contact the board about rescheduling if necessary. I think this should be done in writing or through a phone call to the property manager (just be sure the property manager forwards the request to the board in time).
I agree with doing this or similar.

Posted By SheliaH on 05/11/2020 2:17 PM
You may want to designate one Board member to present the association's side - everyone else should listen and take notes.
No, do not do this. It looks too much like a HOA Director is appointed the "prosecutor"; the member is the accused; and the remaining directors are the judges. In fact, All HOA Directors are the judges in such a dispute. All HOA directors must appear to be impartial.

Posted By SheliaH on 05/11/2020 2:17 PM
Start with a recap of the violation - when and how was it discovered, the specific section in the CCRs that was violated, when letters were sent and the homeowner's response, if any. You should be able to provide dates on which things were done, along with testimony by witnesses (if any) and other evidence like photographs (date and time stamped preferred).
I agree with this part. Then ask the member why she or he feels this is not a violation.

Posted By SheliaH on 05/11/2020 2:17 PM
Before [the hearing] start[s], remind everyone this is not the time or place for name-calling cussing, threats and other bad behavior. Do not interrupt while others are talking, turn off the cell phone (I wouldn't even set it on vibrate, otherwise, the person will have to leave the room to take the call). This applies to board members as well as the homeowner. If this is an executive board session, people who AREN'T witnesses shouldn't be there.
Agreed.

I also suggest that the Board simply ask questions of the accused. No one should be making any argument for the HOA unless it's a veiled argument, in the form of a question. For example, after the opening comments and reading of the violation and hearing the member's explanation of why she or he feels this is not a violation, Director Sally R. might ask: "Do you understand that the HOA Board has a legal obligation to enforce the covenants? Do you understand that if the HOA Board rules one way for a violation and then, with a different HOA member, the HOA board rules differently, then the Board could get in trouble?" In other words, try to encourage the directors to use a Socratic approach.

If the HOA member is clearly in the right, then the Board should hear him or her out, without committing to a decision.

A vote on whether the violation will continue to be enforced should then be done after the hearing, without the accused present. The accused should receive a formal letter that states what the board's decision is.
PaulJ6
(New York)

Posts:860


05/11/2020 3:20 PM  
Posted By MarkW18 on 05/11/2020 2:51 PM
Posted By PaulJ6 on 05/11/2020 2:43 PM
Be sure to follow your governing documents (bylaws, Certificate of Incorporation, etc.) when you try to impose fines on someone. My HOA tried to fine me for some nonsense, but it didn't follow procedures required by the bylaws. Result? The fines were withdrawn and the HOA got sued.



You do know that suing your HOA is the same as suing yourself?




Having sued a HOA, it is not. Suing a HOA is suing an entity in which you have a stake, but it is necessary to stop bad behavior, and it's unjust for you alone to suffer damages caused by others.
MarkW18


Posts:1067


05/11/2020 3:27 PM  
Augustin

I know you'll find this hard to believe, but a company like the one the OP employs is the one that most likely wrote up the violation for which the homeowner is being called in for in the first place.

A good manager can help facilitate the proceedings, being a neutral third party.
MarkW18


Posts:1067


05/11/2020 3:28 PM  
Posted By PaulJ6 on 05/11/2020 3:20 PM
Posted By MarkW18 on 05/11/2020 2:51 PM
Posted By PaulJ6 on 05/11/2020 2:43 PM
Be sure to follow your governing documents (bylaws, Certificate of Incorporation, etc.) when you try to impose fines on someone. My HOA tried to fine me for some nonsense, but it didn't follow procedures required by the bylaws. Result? The fines were withdrawn and the HOA got sued.



You do know that suing your HOA is the same as suing yourself?




Having sued a HOA, it is not. Suing a HOA is suing an entity in which you have a stake, but it is necessary to stop bad behavior, and it's unjust for you alone to suffer damages caused by others.



I was meant solely as sarcasm.
KerryL1
(California)

Posts:7217


05/11/2020 3:42 PM  
Sorry, Joseph, that your question got sidetracked. Sheila's citation is useful. But read your OWN docs first.

Here is what we have in our Community Handbook (Rules & Regs).:

PROCEDURE FOR RESIDENTIAL OWNER HEARINGS
If you have been invited to attend a hearing for an alleged violation of the Association's Governing Documents, the following procedure will be followed:
Procedure:
1. You will be introduced to the Board of Directors and other Association representatives.
2. The acting chair will summarize the reason for your invitation to the hearing.
3. You may present written or oral evidence to state your position.
4. The requirements of the Association's Governing Documents will be reviewed for clarification of issues.
5. The Board may ask you questions.
6. You may ask the Board questions and make a final statement.
7. Your participation in the foregoing is appreciated by the Board. The Board will deliberate and vote in closed session.
8. You will be notified of the Board's decision, in writing, within ten business days.

AugustinD


Posts:3364


05/11/2020 3:42 PM  
Posted By MarkW18 on 05/11/2020 3:27 PM
a company like the one the OP employs is the one that most likely wrote up the violation for which the homeowner is being called in for in the first place.
I am fine with the manager attending to answer questions or provide other factual information. But the manager's presiding over the hearing is not appropriate.
KerryL1
(California)

Posts:7217


05/11/2020 4:24 PM  
Our PM, too, writes violation courtesy letters once an alleged violation has been confirmed by another staffer or management. But the PM doe not preside at the board hearing.

I imagine there are HOAs where directors-ue to ignorance or maybe lack of confidence, prefer and even beg their PM to preside.
PaulJ6
(New York)

Posts:860


05/12/2020 6:12 PM  
Posted By MarkW18 on 05/11/2020 3:28 PM
Posted By PaulJ6 on 05/11/2020 3:20 PM
Posted By MarkW18 on 05/11/2020 2:51 PM
Posted By PaulJ6 on 05/11/2020 2:43 PM
Be sure to follow your governing documents (bylaws, Certificate of Incorporation, etc.) when you try to impose fines on someone. My HOA tried to fine me for some nonsense, but it didn't follow procedures required by the bylaws. Result? The fines were withdrawn and the HOA got sued.



You do know that suing your HOA is the same as suing yourself?




Having sued a HOA, it is not. Suing a HOA is suing an entity in which you have a stake, but it is necessary to stop bad behavior, and it's unjust for you alone to suffer damages caused by others.



I was meant solely as sarcasm.




Thanks- I knew that we are long-standing friends but I can be pretty dense sometimes. I do know someone who thinks that suing your HOA is suing yourself (and we’re friends as well).
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