Open Forum Cutoffs and Facing the Accuser in Disciplinary Hearings

By Kelly G. Richardson, Esq. CCAL, HOA Homefront Column 

Good morning, we have a small HOA. Currently, we are conducting both membership and board meetings in person or by Zoom.  There is one owner who generally attends all meetings and is allowed to discuss items on the agenda.  That owner also refuses to pay late fees on their monthly HOA fees, so technically they are not "in good standing".  Can we refuse to allow them to participate in meetings?  The person in question is an owner but is not a board member. Thanks, K.W., Brawley.

Dear K.W.: Board meetings are for board discussions. Except during open forum the audience should be listening, not participating, unless invited to comment. So, the simplest measure is to insist that outside of open forum members shall not interject into the board discussions. Member rights to vote cannot be suspended per Civil Code Sections 5105(h)(1) and 5115(b), but it is unclear whether a board could suspend someone’s right under Civil Code Section 4925(a) to attend board meetings. The best response to member assessment delinquency is an effective collection program. Sincerely, Kelly

Question: At a HOA meeting, the president stated that no one would be allowed to interrupt a speaker while they were talking during their allowed 5 minutes. As a homeowner spoke, the President interrupted the homeowner and shouted that they were “out of order, out of line and to sit down”. The homeowner tried to reclaim their time and finish speaking their point. The President declared that the meeting was over until the homeowner left. The homeowner left but a few days later was charged with 8 counts of violating the conduct rules. How can he do this? Is this even close to being legal? Anything that you can say would help. B.G., Palm Desert 

Dear B.G.: Meeting conduct rules apply to everyone in the board meeting, including the president. So long as a homeowner is within their time limits, they should not be interrupted. There should be no censorship of what an open forum speaker says, although the HOA may remind attendees that the HOA has no responsibility for open forum comments. As to disciplining the homeowner, it’s hard to comment without reviewing the rules, but your narrative implies a retaliatory attitude by the President, which would be improper. Best regards, Kelly

Hi Mr. Richardson, we have a homeowner that insists that the HOA must have the complainant in a harassment violation present at their hearing? We have never done that before – is it required? M.H., San Diego 

Dear M.H.:

Many people confuse HOA disciplinary hearings with criminal court proceedings. While in a courtroom criminal defendants have various constitutional rights, the procedure in HOA disciplinary hearings is quite simple, as it should be. These are neighborhood hearings and nobody is going to jail. The procedure for such hearings and the “due process” is only what is stated in Civil Code Section 5855. So, there is no right to a jury, or right to counsel, or the right to cross-examine witnesses- the venue is a panel of volunteers deciding if HOA discipline should be imposed. It’s a good idea for HOAs to adopt written disciplinary hearing procedures, so both homeowners and board members know what to expect in the hearing.

Thanks, Kelly