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Subject: Fraud and bad board
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MichaelH31
(California)

Posts:28


11/16/2020 7:31 AM  
I'm a new board member in California. A few years ago one member decided he wanted to be a janitorial vendor, and the board accepted his contract in which his main job is to clean the bathrooms twice a week, along with the meeting room, pool engine room, and clean any graffiti which occasionally happens. I discovered the bathrooms have been locked since the pandemic, the meeting room doesn't get used, but he is still billing the HOA for the full amount....$100 a week.

This seems like fraud to me. Billing for services not rendered. The bathrooms are his main job, everything thing else is minor. When I asked the treasurer why we were paying for cleaning bathrooms that are closed, he responded with how much this person does for the HOA outside of his contract.

Our board has a history of breaking the CC&R's themselves, such as renting out a room which isn't allowed, and fining others who break the same rule. We are in fact getting ready to sue a homeowner for not paying fines for renting a room. If this goes to court I'm afraid the HOA is going to take a big loss, as this person knows the board is breaking the same rules. They also have come out and said certain CC&R's won't be enforced because they don't think they are right.

Anyway, I'm at a loss how to proceed here. I'd like to tell them this is fraud, against the law, and that he should step down. Along with the treasurer who signs his checks and is in agreement with paying him. Since I brought this up, the treasurer now wants to expand the janitorial contract for more pay and cover a wide range of duties. I'd also like to tell the board member renting a room out to step down also. Should I speak with our management company? Should I ask to speak to the boards lawyer? While this isn't grand theft, it's a few thousand dollars so far. I appreciate any advice. Our board meeting is very soon and I don't want to make a complete ass out of myself here!

AugustinD


Posts:4421


11/16/2020 7:45 AM  
MichaelH31, I agree with your concerns but would not use the word "fraud" at this point. I suggest you request, by email to the appropriate person(s), that the following motion (or similar) be placed on the agenda of the next board meeting:

"Motion to seek reimbursement from vendor XYZ for the weeks in the period from __ to __, when the HOA-owned bathrooms and ____ were closed. My understanding is that this vendor did not clean these bathrooms and the ____ during this period. I believe the vendor's invoices are not accurate in their assertion that the usual non-pandemic cleaning took place."
ChrisE8
(New York)

Posts:225


11/16/2020 7:59 AM  
Posted By AugustinD on 11/16/2020 7:45 AM
MichaelH31, I agree with your concerns but would not use the word "fraud" at this point. I suggest you request, by email to the appropriate person(s), that the following motion (or similar) be placed on the agenda of the next board meeting:

"Motion to seek reimbursement from vendor XYZ for the weeks in the period from __ to __, when the HOA-owned bathrooms and ____ were closed. My understanding is that this vendor did not clean these bathrooms and the ____ during this period. I believe the vendor's invoices are not accurate in their assertion that the usual non-pandemic cleaning took place."




Agreed. It's breach of contract for now.

Was the contract validly approved by the board, with the potential conflict of interest disclosed to the board, acknowledged by the board and reported to owners if required?
MichaelH31
(California)

Posts:28


11/16/2020 8:18 AM  
The contract was approved by the board and they are fine with the conflict of interest. Not required to be reported to owners. What is the difference between breach of contract and fraud? When I looked up fraud in an HOA it specifically said billing for work not performed, which this is. Granted, it's not on a large scale.
AugustinD


Posts:4421


11/16/2020 8:25 AM  
Posted By MichaelH31 on 11/16/2020 8:18 AM
The contract was approved by the board and they are fine with the conflict of interest. Not required to be reported to owners. What is the difference between breach of contract and fraud? When I looked up fraud in an HOA it specifically said billing for work not performed, which this is. Granted, it's not on a large scale.
Does putting a label on the wrongful conduct go towards remedying the problem?

I have found being on a board demands playing realpolitik. One uses language that maybe is not 100% accurate but is also less likely to offend, and hence more likely to win the required board votes to make things happen.

I think you may be letting your emotions get in the way of constructive conduct.
MichaelH31
(California)

Posts:28


11/16/2020 8:26 AM  
Thanks for the suggestion. I would do that but the rest of the board is clear they are ok with this, as he does so much else around the community. And since I brought this up they already want to cover for him with a modified contract and a raise.
AugustinD


Posts:4421


11/16/2020 8:28 AM  
Posted By MichaelH31 on 11/16/2020 8:26 AM
Thanks for the suggestion. I would do that but the rest of the board is clear they are ok with this, as he does so much else around the community. And since I brought this up they already want to cover for him with a modified contract and a raise.
Then the point of getting this on the agenda would be to bring this to the members' attention, to give you your best chances of getting new directors elected at the next election.

If you're thinking of going to the police and making a report of criminal fraud, go ahead. But in my experience, the police would do nothing.
MichaelH31
(California)

Posts:28


11/16/2020 8:37 AM  
Posted By AugustinD on 11/16/2020 8:28 AM
Posted By MichaelH31 on 11/16/2020 8:26 AM
Thanks for the suggestion. I would do that but the rest of the board is clear they are ok with this, as he does so much else around the community. And since I brought this up they already want to cover for him with a modified contract and a raise.
Then the point of getting this on the agenda would be to bring this to the members' attention, to give you your best chances of getting new directors elected at the next election.

If you're thinking of going to the police and making a report of criminal fraud, go ahead. But in my experience, the police would do nothing.





Yes, I've got it on the agenda. And no, I'm not going to the police. No one attends the meetings usually, which are now on Zoom. They are all friends and take care of each other. I don't know how I'd get word out to the homeowners, who don't even know they are paying him as janitor.
AugustinD


Posts:4421


11/16/2020 8:37 AM  
Posted By MichaelH31 on 11/16/2020 7:31 AM
Should I speak with our management company?
You have no legal power as a single director. Only a board majority can give direction to the management company. Furthermore, if you give the management company any kind of hassle about this, the chances are good that the board majority will make your life difficult as a board member.
Posted By MichaelH31 on 11/16/2020 7:31 AM
Should I ask to speak to the boards lawyer?
You can do so only with the board majority's permission. Go ahead and ask the majority for this permission.
Posted By MichaelH31 on 11/16/2020 7:31 AM
While this isn't grand theft, it's a few thousand dollars so far. I appreciate any advice. Our board meeting is very soon and I don't want to make a complete ass out of myself here!
You could file a request for internal dispute resolution. Search davis-stirling.com for "IDR" and it will explain how to proceed.
AugustinD


Posts:4421


11/16/2020 8:40 AM  
Posted By MichaelH31 on 11/16/2020 8:37 AM
I don't know how I'd get word out to the homeowners, who don't even know they are paying him as janitor.
The usual way is to write all Owners about your concerns, and start a campaign to replace the corrupt directors at the next election. You have a lawful right to view the list of Owners and their contact information.

Expect a lot of hostility from the incumbents.

I expect none of these options are appealing.

Keep reading this forum and you will see that the conundrum in which you find yourself as a new director is common. I think knowing you are not alone and seeing what others did, and when their strategies work, might help.

Unfortunately often there is no good strategy, and the best option is to move.
MichaelH31
(California)

Posts:28


11/16/2020 8:40 AM  
Posted By AugustinD on 11/16/2020 8:37 AM
Posted By MichaelH31 on 11/16/2020 7:31 AM
Should I speak with our management company?
You have no legal power as a single director. Only a board majority can give direction to the management company. Furthermore, if you give the management company any kind of hassle about this, the chances are good that the board majority will make your life difficult as a board member.
Posted By MichaelH31 on 11/16/2020 7:31 AM
Should I ask to speak to the boards lawyer?
You can do so only with the board majority's permission. Go ahead and ask the majority for this permission.
Posted By MichaelH31 on 11/16/2020 7:31 AM
While this isn't grand theft, it's a few thousand dollars so far. I appreciate any advice. Our board meeting is very soon and I don't want to make a complete ass out of myself here!
You could file a request for internal dispute resolution. Search davis-stirling.com for "IDR" and it will explain how to proceed.





Thank you for the advice! It looks like a losing battle here. I don't know how difficult they could make my life, but this is wrong, and I'll probably just say so regardless.
MichaelH31
(California)

Posts:28


11/16/2020 8:48 AM  
Posted By AugustinD on 11/16/2020 8:40 AM
Posted By MichaelH31 on 11/16/2020 8:37 AM
I don't know how I'd get word out to the homeowners, who don't even know they are paying him as janitor.
The usual way is to write all Owners about your concerns, and start a campaign to replace the corrupt directors at the next election. You have a lawful right to view the list of Owners and their contact information.

Expect a lot of hostility from the incumbents.

I expect none of these options are appealing.

Keep reading this forum and you will see that the conundrum in which you find yourself as a new director is common. I think knowing you are not alone and seeing what others did, and when their strategies work, might help.

Unfortunately often there is no good strategy, and the best option is to move.





I will get the names and start a campaign. Thanks again for the advice. The long game is to expose these guys and get them voted out. You're right, none of this is appealing, but I'm sick of them doing whatever they want.
AugustinD


Posts:4421


11/16/2020 8:52 AM  
Do check back. Other long-time hoatalk members, including Californians who know California HOA law well, will post back and may have some other suggestions.
MichaelH31
(California)

Posts:28


11/16/2020 8:56 AM  
Posted By AugustinD on 11/16/2020 8:52 AM
Do check back. Other long-time hoatalk members, including Californians who know California HOA law well, will post back and may have some other suggestions.




Thank you!
GeorgeS21
(Florida)

Posts:3411


11/16/2020 9:07 AM  
Another angle?

It is a pandemic - many landlords are cutting deals with their renters, many banks are cutting deals with their clients, etc.

And, if you decide to terminate the contract you have will he bid again? Will you find someone else better or less expensive?

Maybe consider paying a "retainer" of $50 in lieu of the $100 until such time as work starts, again?

"Fraud?" Nah - and that is pejorative language to use in this circumstance.
BillH10
(Texas)

Posts:582


11/16/2020 9:23 AM  
Michael

In your original post you mentioned a conversation you had with the Treasurer, who stated (claimed??) the contractor does so much more for the Association. There was also mention of a raise.

While I respect the approach suggested by the others, may I suggest an alternative approach which may avoid the use of pejorative labels regarding actions and perhaps resolve your concerns--or at least move in that direction.

First, Covid-19 is obviously a major issue for us all. As owners of a property management company, we communicated with our clients and vendors as soon as the shelter in place restrictions were enacted to assess what our client vendors intended to do and what our clients thought appropriate in terms of the services we provide. We were prepared to make changes in the scopes of work in our contracts with our clients, we were also prepared to make changes to vendor/contractor scopes. Fortunately, we did not have to enact changes but the master association in which we reside did make such changes with association contractors.

To my point: I recommend you make a 'butter won't melt in your mouth' motion at your next Board meeting to amend the existing contract with this person to memorialize the changes in the scope of the work activities performed. If there is a substantive increase in the activities performed under the scope, then a raise may indeed be justified. If the expanded activities do not support/justify a raise, especially since some activities under the existing contract are not being performed, then you have reasonable talking and data points to suggest a raise is not justified at this time. Either way, the scope of work is modified to describe the work activities performed.

If you go down this path, I suggest you keep your thoughts about fraud and inappropriate actions to yourself; just let the $$$ from the last several months go by the wayside. You may indeed wish to undertake a quiet revolution to unseat other members of the Board; you at least may not be faced with an adversarial relationship with the other Board members--until they find out what you are up to.

Good luck, whichever course of action you take.
MichaelH31
(California)

Posts:28


11/16/2020 9:23 AM  
Posted By GeorgeS21 on 11/16/2020 9:07 AM
Another angle?

It is a pandemic - many landlords are cutting deals with their renters, many banks are cutting deals with their clients, etc.

And, if you decide to terminate the contract you have will he bid again? Will you find someone else better or less expensive?

Maybe consider paying a "retainer" of $50 in lieu of the $100 until such time as work starts, again?

"Fraud?" Nah - and that is pejorative language to use in this circumstance.





I appreciate your angle. Yes, I know it's pejorative, and it's meant to be. Why is it not fraud? One of the definitions of fraud is billing for work not performed, I looked it up.
BillH10
(Texas)

Posts:582


11/16/2020 9:24 AM  
George, it seems you and I are thinking alike, including the use of terminology
KerryL1
(California)

Posts:7660


11/16/2020 9:27 AM  
Is this "member" just an owner or also a board member? A little unclear. If not a board member I don't see a conflict of interest. Since it is a personnel matter, You can put this topic in executive session. Your might have a franker, friendlier discussion this way with the Board. I don't see any benefit to you or your HOA by blasting this out in an open meeting as a FIRST step. In other words, can you try a more delicate approach first? Or are you already at odds with the board majority?

What size is your board and your HOA? Are these bathrooms for the pool area or a lobby or what?

Is it often owners are called to hearings and fined for renting out a room? How is the fine & rule enforced? As a matter of "owner discipline," you could place the director's non-compliance with this covenant also on executive session and get her/his side of the story.

I guess what I'm say is see if you can work with the Baord in either situation. To incite them to completely turn against you is VERY hard to live with.


ChrisE8
(New York)

Posts:225


11/16/2020 9:29 AM  
Posted By MichaelH31 on 11/16/2020 9:23 AM
Posted By GeorgeS21 on 11/16/2020 9:07 AM
Another angle?

It is a pandemic - many landlords are cutting deals with their renters, many banks are cutting deals with their clients, etc.

And, if you decide to terminate the contract you have will he bid again? Will you find someone else better or less expensive?

Maybe consider paying a "retainer" of $50 in lieu of the $100 until such time as work starts, again?

"Fraud?" Nah - and that is pejorative language to use in this circumstance.





I appreciate your angle. Yes, I know it's pejorative, and it's meant to be. Why is it not fraud? One of the definitions of fraud is billing for work not performed, I looked it up.




It's breach of contract because you have a contract that requires that work be performed for payment. Payment was made but the work wasn't performed. Thus the contract was breached.

Accusing someone of "noncompliance with the contract" is a lot less offensive than accusing someone of "fraud".
BillH10
(Texas)

Posts:582


11/16/2020 9:33 AM  
Michael

In the true sense of the word, what you have described may be fraud, or certainly not performing work stipulated in the contract. No argument.

However, we are all on new and uncertain ground here. I will cite a personal example:

Several of our neighbors use the same person to perform house cleaning services. Most of us are 65+ and in the 'high risk group'.

My wife and I, and some of the neighbors, felt putting the housekeeper on hiatus for a month or two or three made sense. She is significantly younger than all of us, makes frequent trips to casinos just over the Texas line in Oklahoma and Louisiana for recreation, and has travelled to Las Vegas since March.

Some neighbors chose to continue to compensate her, even though she was not performing housekeeper services for a few months, at owner request. Others took the approach "no work, no pay".

Others chose business as usual.

Which course of action is "right"? We could debate this until the cows come home.
MichaelH31
(California)

Posts:28


11/16/2020 9:47 AM  
Posted By KerryL1 on 11/16/2020 9:27 AM
Is this "member" just an owner or also a board member? A little unclear. If not a board member I don't see a conflict of interest. Since it is a personnel matter, You can put this topic in executive session. Your might have a franker, friendlier discussion this way with the Board. I don't see any benefit to you or your HOA by blasting this out in an open meeting as a FIRST step. In other words, can you try a more delicate approach first? Or are you already at odds with the board majority?

What size is your board and your HOA? Are these bathrooms for the pool area or a lobby or what?

Is it often owners are called to hearings and fined for renting out a room? How is the fine & rule enforced? As a matter of "owner discipline," you could place the director's non-compliance with this covenant also on executive session and get her/his side of the story.

I guess what I'm say is see if you can work with the Baord in either situation. To incite them to completely turn against you is VERY hard to live with.







I am somewhat at odds with them. I'm not in their circle of friends. When there was a board vacancy mid year I offered to fill in. Instead they went months with only 4 board members until they found someone willing to fill it. So this election I ran and got in by one vote. In the past I have received texts from them asking me to vote for someone specific at elections, so there is that.

5 member board with 75 homes. Bathrooms are for the pool area, and are lightly used. Mostly by landscapers.

No, owners to my knowledge are not held accountable for renting out rooms. They have an issue with this one who has rented rooms, because they personally don't like him, fined him over and over again to the point of a lawsuit, all while knowing others and they do the same.

Yeah, might be hard to live with, but what could they do to me?
MichaelH31
(California)

Posts:28


11/16/2020 9:59 AM  
Posted By BillH10 on 11/16/2020 9:33 AM
Michael

In the true sense of the word, what you have described may be fraud, or certainly not performing work stipulated in the contract. No argument.

However, we are all on new and uncertain ground here. I will cite a personal example:

Several of our neighbors use the same person to perform house cleaning services. Most of us are 65+ and in the 'high risk group'.

My wife and I, and some of the neighbors, felt putting the housekeeper on hiatus for a month or two or three made sense. She is significantly younger than all of us, makes frequent trips to casinos just over the Texas line in Oklahoma and Louisiana for recreation, and has travelled to Las Vegas since March.

Some neighbors chose to continue to compensate her, even though she was not performing housekeeper services for a few months, at owner request. Others took the approach "no work, no pay".

Others chose business as usual.

Which course of action is "right"? We could debate this until the cows come home.




Thank you Bill, I get your point.
JohnC46
(South Carolina)

Posts:10130


11/16/2020 10:17 AM  
Michael's issues with the BOD are deeper than just the jaitir.
MichaelH31
(California)

Posts:28


11/16/2020 10:21 AM  
Posted By JohnC46 on 11/16/2020 10:17 AM
Michael's issues with the BOD are deeper than just the jaitir.



Hi, yes I think I made it clear there are other issues other than the janitor.
AugustinD


Posts:4421


11/16/2020 10:59 AM  
Posted By MichaelH31 on 11/16/2020 9:47 AM
Yeah, might be hard to live with, but what could they do to me?
(1) Delay for months responses to legitimate requests you have; (2) publish distorted truths or lies about you i the community newsletter and minutes; (3) sue you frivolously in court for corporation defamation and other causes of action.
MichaelH31
(California)

Posts:28


11/16/2020 11:03 AM  
Posted By AugustinD on 11/16/2020 10:59 AM
Posted By MichaelH31 on 11/16/2020 9:47 AM
Yeah, might be hard to live with, but what could they do to me?
(1) Delay for months responses to legitimate requests you have; (2) publish distorted truths or lies about you i the community newsletter and minutes; (3) sue you frivolously in court for corporation defamation and other causes of action.




Point taken. Definitely food for thought.
KerryL1
(California)

Posts:7660


11/16/2020 11:10 AM  
Along with Augustin's examples, the board also can ignore you during meetings, not put your agenda item on agendas, never support any iniitiatives you do have.

It sounds like your HOA's election isn't for along time. I don't think you want to go the "recall the Board" route. I think you can try to encourage more open meeting attendance via notes under doors of Owner-occupied units. Maybe put the meeting agenda on it to entice attendance.
AugustinD


Posts:4421


11/16/2020 11:11 AM  
On the other hand, many who come here posting problems like the OP's have quietly stated the law and/or covenants to their boards, in an open meeting or sometimes in a formal "demand letter lite," and caused real change and quite quickly. I am biased because I think one of the three HOAs/condos to which I have belonged exercised the aforementioned three options multiple times with members over the years they did not like or who were on the board. The problems were serious, e.g. with sewage being allowed (IMO) to back up into several units for some years because the Board would not remove the frickin' tree that was the source of the backups. Delaying records inspections by directors for months. Fair Housing problems occurred, at great cost to the membership, on account of a stupid board and manger. Another FHA problem appears to have traction with HUD and is a freight train coming down the track IMO. Over half the units are owned by landlords, many of whom live out of state. Apathy prevails when it came to serving on the board.

The other two HOA/Condo boards were not as freaky, generally trying to follow the law.
MichaelH31
(California)

Posts:28


11/16/2020 11:20 AM  
Posted By KerryL1 on 11/16/2020 11:10 AM
Along with Augustin's examples, the board also can ignore you during meetings, not put your agenda item on agendas, never support any iniitiatives you do have.

It sounds like your HOA's election isn't for along time. I don't think you want to go the "recall the Board" route. I think you can try to encourage more open meeting attendance via notes under doors of Owner-occupied units. Maybe put the meeting agenda on it to entice attendance.





Thank you Kerry. Great idea with the notes. I've already requested a residence list.
ChrisE8
(New York)

Posts:225


11/16/2020 11:28 AM  
From my own experience, I would never take on a board all by myself, if my goal was to improve the board or the HOA overall.

Get like-minded people and team up to effect change.
MichaelH31
(California)

Posts:28


11/16/2020 11:35 AM  
Posted By ChrisE8 on 11/16/2020 11:28 AM
From my own experience, I would never take on a board all by myself, if my goal was to improve the board or the HOA overall.

Get like-minded people and team up to effect change.




Thank you Chris, you are right. I will play the long game.
MichaelH31
(California)

Posts:28


11/16/2020 11:42 AM  
Posted By AugustinD on 11/16/2020 8:40 AM
Posted By MichaelH31 on 11/16/2020 8:37 AM
I don't know how I'd get word out to the homeowners, who don't even know they are paying him as janitor.
The usual way is to write all Owners about your concerns, and start a campaign to replace the corrupt directors at the next election. You have a lawful right to view the list of Owners and their contact information.

Expect a lot of hostility from the incumbents.

I expect none of these options are appealing.

Keep reading this forum and you will see that the conundrum in which you find yourself as a new director is common. I think knowing you are not alone and seeing what others did, and when their strategies work, might help.

Unfortunately often there is no good strategy, and the best option is to move.




Augustin, you said I have a right to view the list of owners and their contact information.......I just got a partial list from MC of about a third, saying the others had opted out of sharing information. Where can I go to find out where it says I have the right, so I can let them know? Thank you.
MarkM19
(Texas)

Posts:684


11/16/2020 12:01 PM  
Michael,
Wow this is a long thread and i did not have the time required to read all the posts but they seemed pretty similar. The angle I would take is remind all board members of their "Fiduciary Duties" and responsibilities to All owners not a single owner. You can leave it open for all to interpret as they wish. Let them realize you are watching without blaming them at this point.
MichaelH31
(California)

Posts:28


11/16/2020 12:05 PM  
Posted By MarkM19 on 11/16/2020 12:01 PM
Michael,
Wow this is a long thread and i did not have the time required to read all the posts but they seemed pretty similar. The angle I would take is remind all board members of their "Fiduciary Duties" and responsibilities to All owners not a single owner. You can leave it open for all to interpret as they wish. Let them realize you are watching without blaming them at this point.





Hi Mark, thanks for your input. Good point about fiduciary duties.....will do.
AugustinD


Posts:4421


11/16/2020 12:22 PM  
Posted By MichaelH31 on 11/16/2020 11:42 AM
you said I have a right to view the list of owners and their contact information.......I just got a partial list from MC of about a third, saying the others had opted out of sharing information.
Pfft. Your MC is out of line. The controlling law here is California Corporation Code Section 8330, with some help from the California Civil Code. I suggest writing a letter like the following:

=======================
Dear Manager Smith,

Regarding my request to inspect and copy the membership list, and pursuant to California Corporation Code Section 8330 (c) and the California statutes listed below, my understanding is that the HOA must provide me with an alternative method of achieving my proper purpose. My proper purpose is to communicate with the membership regarding concerns I have about contracting with vendors for the cleaning of the bathrooms and other common areas.

Per Section 8330, please provide me with this alternative method within ten days.

Thank you,

name
address
phone
email addie

Authorities:
Civil Code Sections 5200, 5205, 5210, 5220 and 5235
Corporations Code Section 8330
====

Send the letter registered mail return receipt requested. Once sent, the clock is ticking. It looks like the HOA has five business days to provide the list, per Civil Code 5210. If the HOA fails to provide the list, then report back here, and I will advise wielding Civil Code 5235 like a cudgel.

See:
https://www.davis-stirling.com/HOME/Statutes/Corp-Code-8330
https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5200
https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5205
https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5210
https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5220
https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5235

MichaelH31
(California)

Posts:28


11/16/2020 12:28 PM  
Posted By AugustinD on 11/16/2020 12:22 PM
Posted By MichaelH31 on 11/16/2020 11:42 AM
you said I have a right to view the list of owners and their contact information.......I just got a partial list from MC of about a third, saying the others had opted out of sharing information.
Pfft. Your MC is out of line. The controlling law here is California Corporation Code Section 8330, with some help from the California Civil Code. I suggest writing a letter like the following:

=======================
Dear Manager Smith,

Regarding my request to inspect and copy the membership list, and pursuant to California Corporation Code Section 8330 (c) and the California statutes listed below, my understanding is that the HOA must provide me with an alternative method of achieving my proper purpose. My proper purpose is to communicate with the membership regarding concerns I have about contracting with vendors for the cleaning of the bathrooms and other common areas.

Per Section 8330, please provide me with this alternative method within ten days.

Thank you,

name
address
phone
email addie

Authorities:
Civil Code Sections 5200, 5205, 5210, 5220 and 5235
Corporations Code Section 8330
====

Send the letter registered mail return receipt requested. Once sent, the clock is ticking. It looks like the HOA has five business days to provide the list, per Civil Code 5210. If the HOA fails to provide the list, then report back here, and I will advise wielding Civil Code 5235 like a cudgel.

See:
https://www.davis-stirling.com/HOME/Statutes/Corp-Code-8330
https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5200
https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5205
https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5210
https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5220
https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5235






Wow! Thank you SO much!!
AugustinD


Posts:4421


11/16/2020 12:40 PM  
You're welcome.

Watch for Californian KerryL1's posts in this thread. She knows Davis-Stirling and the records inspection sections well.
KerryL1
(California)

Posts:7660


11/16/2020 1:01 PM  
Owners have the right to have Association records as Augustin shows. Owners' addresses are their mailing address and their HOA property address. In other words, you probably don't want to place your memo under the doors of renters. Instead mail them your approach.

Even if your HOA has rule agist notices of any kinds at/under owners doors, CA Civ. code eff. 1/19 (or '18) permits to distrutue the noises.

Since 1/20, Association records in CA include Owners' email addys. Owners, However, can opt out in writing that they don't want these email addys shared.

I THINK owners also can opt out of having their mailing address shared, but no one in my HOA has ever done it, and I might be wrong on this one.
ChrisE8
(New York)

Posts:225


11/16/2020 1:44 PM  
Yes, in every HOA where I've owned a place, there is always one owner sending out mass emails, griping about the board.

That's another reason why it's better to be part of a team: people will ignore one person, but if you have a team, not only do you have other people to back you up, but they'll also (hopefully) tell you what's worth fighting about and what's not. For example, using the word "fraud" can backfire and make people think that you're crying wolf. The calmer and more reasoned the appeals to other owners are, the more chance of success.
MichaelH31
(California)

Posts:28


11/16/2020 2:07 PM  
Posted By KerryL1 on 11/16/2020 1:01 PM
Owners have the right to have Association records as Augustin shows. Owners' addresses are their mailing address and their HOA property address. In other words, you probably don't want to place your memo under the doors of renters. Instead mail them your approach.

Even if your HOA has rule agist notices of any kinds at/under owners doors, CA Civ. code eff. 1/19 (or '18) permits to distrutue the noises.

Since 1/20, Association records in CA include Owners' email addys. Owners, However, can opt out in writing that they don't want these email addys shared.

I THINK owners also can opt out of having their mailing address shared, but no one in my HOA has ever done it, and I might be wrong on this one.





Thank you Kerry, this is all great information. Much appreciated.
MelissaP1
(Alabama)

Posts:9714


11/16/2020 3:11 PM  
May I ask what the full terms of the contract are before we go overboard here? It seems the board signed a contract to pay someone $100 a week to clean per year. It didn't determine the conditions of cleaning whether or not facilities were open.

Am I the only one who doesn't see a real problem here? We pay our lawncare people for a year but they only work May to August. That is just the way some contracts work. No fraud here. Just someone who convinced the board to hire them to do a job no one wanted to do.

Former HOA President
ChrisE8
(New York)

Posts:225


11/16/2020 4:28 PM  
Posted By MelissaP1 on 11/16/2020 3:11 PM
May I ask what the full terms of the contract are before we go overboard here? It seems the board signed a contract to pay someone $100 a week to clean per year. It didn't determine the conditions of cleaning whether or not facilities were open.

Am I the only one who doesn't see a real problem here? We pay our lawncare people for a year but they only work May to August. That is just the way some contracts work. No fraud here. Just someone who convinced the board to hire them to do a job no one wanted to do.




MelissaP1, you make a great point. If the contract just provides for payment of $100 per period and doesn't require any duties, then not only is there no fraud, but there's no breach of contract even. Idiot board, but being an idiot is not illegal.
MichaelH31
(California)

Posts:28


11/16/2020 4:58 PM  
Posted By MelissaP1 on 11/16/2020 3:11 PM
May I ask what the full terms of the contract are before we go overboard here? It seems the board signed a contract to pay someone $100 a week to clean per year. It didn't determine the conditions of cleaning whether or not facilities were open.

Am I the only one who doesn't see a real problem here? We pay our lawncare people for a year but they only work May to August. That is just the way some contracts work. No fraud here. Just someone who convinced the board to hire them to do a job no one wanted to do.




Terms are he's to clean twice a week on specified days. That's not happening. Also convinced them to fire the girl who had the job and did want it, so he could do it.
MelissaP1
(Alabama)

Posts:9714


11/16/2020 5:09 PM  
So? Sounds like a personal reasons on your part.

BTW: I work in an office that everyone was sent home to telework since March. Only essential people allowed to stay. Guess what? They still have a cleaning crew every week coming in. They vacuum, dust, and toss out garbage from when someone does come in. An empty room still needs to be kept. How do you know it's not cleaning because your not allowed in?

This isn't worth a battle unless you want the job.

Former HOA President
MichaelH31
(California)

Posts:28


11/16/2020 5:24 PM  
Posted By MelissaP1 on 11/16/2020 5:09 PM
So? Sounds like a personal reasons on your part.

BTW: I work in an office that everyone was sent home to telework since March. Only essential people allowed to stay. Guess what? They still have a cleaning crew every week coming in. They vacuum, dust, and toss out garbage from when someone does come in. An empty room still needs to be kept. How do you know it's not cleaning because your not allowed in?

This isn't worth a battle unless you want the job.




So what? You asked so I told you. What makes you think I'm not allowed in? I'm on the board, I have keys. Your work office isn't relevant. Personal reasons on my part?......you're free to have an opinion. You've made it clear you think it's ok not to do what you're contracted to do, and still get paid for it. I think you'd like our board.
MelissaP1
(Alabama)

Posts:9714


11/16/2020 5:32 PM  
I think I would like your board as they kind of sound like they don't jump and have personal reactions to things. My office is a corporation just like a HOA. What makes you think that if they sign a contract that whether or not the person is "needed" they don't have to honor the contract? It is called TERMS of contract. If the person is available and willing to clean but there is no need for it, then what is wrong?

Former HOA President
MichaelH31
(California)

Posts:28


11/16/2020 6:02 PM  
Posted By MelissaP1 on 11/16/2020 5:32 PM
I think I would like your board as they kind of sound like they don't jump and have personal reactions to things. My office is a corporation just like a HOA. What makes you think that if they sign a contract that whether or not the person is "needed" they don't have to honor the contract? It is called TERMS of contract. If the person is available and willing to clean but there is no need for it, then what is wrong?





What is wrong is he just stopped cleaning on his own. No one told him to stop. He doesn't need to honor his contract? As a vendor he just decides to stop and that's ok? He has total access. I agree to disagree with you. Thanks for your opinions.
GeorgeS21
(Florida)

Posts:3411


11/16/2020 7:50 PM  
Michael,

If you had girls working for the community you would be in real trouble ... isn’t that illegal?
MelissaP1
(Alabama)

Posts:9714


11/17/2020 4:20 AM  
Seems a lot of assumptions here. What was he supposed to do if things were shut down? This is a communication issue on ALL parts. Did you want this person to just throw up their hands and say "I quit cleaning so let's just forget having a janitor"?

Not sure why this has your biscuits in the grease. You all still need/want a janitor position whether or not it is needed during this time period.

All can say is bring up the issue to the rest of the board to consider. Plus read the contract as it exist. You all may want to make some changes to the conditions. So far I don't see an issue here just because the area to be cleaned are not being used presently. This kind of stuff happens all the time in the real world. A contract is a contract is a contract....

Former HOA President
MichaelH31
(California)

Posts:28


11/17/2020 6:39 AM  
Posted By MelissaP1 on 11/17/2020 4:20 AM
Seems a lot of assumptions here. What was he supposed to do if things were shut down? This is a communication issue on ALL parts. Did you want this person to just throw up their hands and say "I quit cleaning so let's just forget having a janitor"?

Not sure why this has your biscuits in the grease. You all still need/want a janitor position whether or not it is needed during this time period.

All can say is bring up the issue to the rest of the board to consider. Plus read the contract as it exist. You all may want to make some changes to the conditions. So far I don't see an issue here just because the area to be cleaned are not being used presently. This kind of stuff happens all the time in the real world. A contract is a contract is a contract....





You keep harping about a contract but don't want to address the fact the he isn't fulfilling it. It's not a communication issue on all parts when no one else knew/cared if restrooms are being cleaned, and he didn't bother to let anyone know. It's lack of transparency on his part alone.. In the real world, people are laid off all the time or furloughed because they're not needed....contract or no contract. And that's what should happen here. It's a pandemic....and the way things are going our bathrooms could be locked up for up for 1-2 years. Why should we continue to pay to have them cleaned on a weekly basis? We have a fiduciary responsibility to the homeowners, and it's being conveniently ignored.

Our dues have been raised twice the last two years and MC said we should raise it again. I ran on the platform to be fiscally responsible. Paying over such an extended time for a service we do not presently need is not that. So while I respect your opinion, I disagree with it. We don't need/want a janitor position when there is nothing to clean. Furloughing that position would save thousands. And I'd venture to say most of our homeowners would agree with me, especially if they knew $100 a week of their money was going into the pocket of the vice president of the board......whom they don't even know is a vendor. You ask what was he supposed to do if things were shut down? How about keeping his mouth shut and keep billing us for work not being done and not needed. Conflict of interest, you know?





AugustinD


Posts:4421


11/17/2020 7:19 AM  
Posted By MichaelH31 on 11/17/2020 6:39 AM
You keep harping about a contract but don't want to address the fact the he isn't fulfilling it. It's not a communication issue on all parts when no one else knew/cared if restrooms are being cleaned, and he didn't bother to let anyone know. It's lack of transparency on his part alone.. In the real world, people are laid off all the time or furloughed because they're not needed....contract or no contract. And that's what should happen here. It's a pandemic....and the way things are going our bathrooms could be locked up for up for 1-2 years. Why should we continue to pay to have them cleaned on a weekly basis? We have a fiduciary responsibility to the homeowners, and it's being conveniently ignored.

Our dues have been raised twice the last two years and MC said we should raise it again. I ran on the platform to be fiscally responsible.
-- I am also thinking that with the pandemic-induced economic downturn, many have a lower income than before. I expect that, nationwide, there will be an increase in late payments of condo Owners' assessments. I agree with MichaelH31's concerns.

-- This contractor (providing janitorial services) who is also an officer or director on the board should absent himself from all meetings where either his contract or services are discussed.

-- It's clear that, in California, when one Owner requests the membership list (which includes addresses and sometimes other contact info), Owners may require the HOA not to share their contact information. However Corp Code Section 8330 requires the HOA to provide an alternative means for an Owner to achieve her or his proper purpose for requesting the contact list. When the proper purpose is to communicate a specific concern to all Owners, then I think one way the HOA may achieve this is by ensuring the concern is placed on a Board meeting agenda and the Owner with a Concern gets to provide his input during an actual Board meeting (not merely at the open forum section of the meeting). The Owner with the concern should be allowed to rebut what other directors say. Then the Minutes will reflect the Owner's concern and give it pretty much the priority that would otherwise be achieved through, say, a mass mailing. Another option is to have the Owner with the concern type it up on a page, and have this reproduced in the community newsletter, unedited. The Board may rebut what the Owner says, but they are supposed to do so in a way that is fair.

MichaelH31
(California)

Posts:28


11/17/2020 7:42 AM  
Posted By AugustinD on 11/17/2020 7:19 AM
Posted By MichaelH31 on 11/17/2020 6:39 AM
You keep harping about a contract but don't want to address the fact the he isn't fulfilling it. It's not a communication issue on all parts when no one else knew/cared if restrooms are being cleaned, and he didn't bother to let anyone know. It's lack of transparency on his part alone.. In the real world, people are laid off all the time or furloughed because they're not needed....contract or no contract. And that's what should happen here. It's a pandemic....and the way things are going our bathrooms could be locked up for up for 1-2 years. Why should we continue to pay to have them cleaned on a weekly basis? We have a fiduciary responsibility to the homeowners, and it's being conveniently ignored.

Our dues have been raised twice the last two years and MC said we should raise it again. I ran on the platform to be fiscally responsible.
-- I am also thinking that with the pandemic-induced economic downturn, many have a lower income than before. I expect that, nationwide, there will be an increase in late payments of condo Owners' assessments. I agree with MichaelH31's concerns.

-- This contractor (providing janitorial services) who is also an officer or director on the board should absent himself from all meetings where either his contract or services are discussed.

-- It's clear that, in California, when one Owner requests the membership list (which includes addresses and sometimes other contact info), Owners may require the HOA not to share their contact information. However Corp Code Section 8330 requires the HOA to provide an alternative means for an Owner to achieve her or his proper purpose for requesting the contact list. When the proper purpose is to communicate a specific concern to all Owners, then I think one way the HOA may achieve this is by ensuring the concern is placed on a Board meeting agenda and the Owner with a Concern gets to provide his input during an actual Board meeting (not merely at the open forum section of the meeting). The Owner with the concern should be allowed to rebut what other directors say. Then the Minutes will reflect the Owner's concern and give it pretty much the priority that would otherwise be achieved through, say, a mass mailing. Another option is to have the Owner with the concern type it up on a page, and have this reproduced in the community newsletter, unedited. The Board may rebut what the Owner says, but they are supposed to do so in a way that is fair.






Augustin, because of your information MC fessed up a full list of homeowner information when I pressed them. I didn't know he should be recused him from the meeting, so thank you again, it will make things a lot less intense.
AugustinD


Posts:4421


11/17/2020 8:12 AM  
Posted By MichaelH31 on 11/17/2020 7:42 AM
Augustin, because of your information MC fessed up a full list of homeowner information when I pressed them. I didn't know he should be recused him from the meeting, so thank you again, it will make things a lot less intense.
-- Hi Michael, excellent, re the membership information. I trust you will be careful especially with members who 'opted out.'

-- Is the treasurer who has the janitorial services contract also a director? Officers (such as the President, VP, Secretary and Treasurer) are not always directors. If the treasurer is also a director, I suggest you advise the board of the information here: https://www.davis-stirling.com/HOME/Director-Conflicts-of-Interest
MichaelH31
(California)

Posts:28


11/17/2020 9:21 AM  
Posted By AugustinD on 11/17/2020 8:12 AM
Posted By MichaelH31 on 11/17/2020 7:42 AM
Augustin, because of your information MC fessed up a full list of homeowner information when I pressed them. I didn't know he should be recused him from the meeting, so thank you again, it will make things a lot less intense.
-- Hi Michael, excellent, re the membership information. I trust you will be careful especially with members who 'opted out.'

-- Is the treasurer who has the janitorial services contract also a director? Officers (such as the President, VP, Secretary and Treasurer) are not always directors. If the treasurer is also a director, I suggest you advise the board of the information here: https://www.davis-stirling.com/HOME/Director-Conflicts-of-Interest




Hi Augustin, it's the vice president who has the contract and yes he's a director. I will check out your link.
KerryL1
(California)

Posts:7660


11/17/2020 1:50 PM  
So it IS a director who's the janitor. That simply wasn't clear to me.

When you read Augustin's citation, remember that the VP still can attend the rest of the meeting. He cannot discuss or vote on anything having to do with his portion as janitor and direct employee of your HOA. It's best if he'll leave the room which janitor-stuff is being discussed.

Did you place the portion on an executive session agenda? This IS a personnel matter and your board can discuss the topic there.


When does his contract expire????

JohnC46
(South Carolina)

Posts:10130


11/17/2020 2:01 PM  
Posted By KerryL1 on 11/17/2020 1:50 PM
So it IS a director who's the janitor. That simply wasn't clear to me.

When you read Augustin's citation, remember that the VP still can attend the rest of the meeting. He cannot discuss or vote on anything having to do with his portion as janitor and direct employee of your HOA. It's best if he'll leave the room which janitor-stuff is being discussed.

Did you place the portion on an executive session agenda? This IS a personnel matter and your board can discuss the topic there.


When does his contract expire????




I agree especially with the discuss it in Executive Session.
MichaelH31
(California)

Posts:28


11/17/2020 2:04 PM  
Posted By KerryL1 on 11/17/2020 1:50 PM
So it IS a director who's the janitor. That simply wasn't clear to me.

When you read Augustin's citation, remember that the VP still can attend the rest of the meeting. He cannot discuss or vote on anything having to do with his portion as janitor and direct employee of your HOA. It's best if he'll leave the room which janitor-stuff is being discussed.

Did you place the portion on an executive session agenda? This IS a personnel matter and your board can discuss the topic there.


When does his contract expire????





HI Kerry, so let me get this straight.....he can be in on the meeting and listen to us discuss his janitorial contract if he doesn't want to leave? I asked to have it on the agenda and was told it was already prepared, but that we could discuss it........tonight in a few hours.
MarkM19
(Texas)

Posts:684


11/17/2020 2:11 PM  
Michael,
Typically it has to be on the agenda 72 hours prior to the meeting. If it is not on the agenda no action can be taken or voted on during the main meeting. It can be discussed in executive session because it covers the 4 topics that are executive type discussions. Kerry is usually always right with her comments. Typically I would say that the VP should not be in the room when any janitorial talk is going on because if other rates were discussed he should not be aware to any of that information.
MichaelH31
(California)

Posts:28


11/17/2020 2:19 PM  
Posted By MarkM19 on 11/17/2020 2:11 PM
Michael,
Typically it has to be on the agenda 72 hours prior to the meeting. If it is not on the agenda no action can be taken or voted on during the main meeting. It can be discussed in executive session because it covers the 4 topics that are executive type discussions. Kerry is usually always right with her comments. Typically I would say that the VP should not be in the room when any janitorial talk is going on because if other rates were discussed he should not be aware to any of that information.




HI Mark, thanks for the timely information. My MC says he's able to be there but not discuss, so I will bring up your point on rates.
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