Reader Questions - Code of Conduct, Majority Rules

Dear Mr. Richardson,

Our Board adopted a “Code of Ethics” prohibiting any board member from discussing HOA issues with any other member outside of a regularly scheduled Board Meeting. The management company feels this is necessary to protect board members from potential “liability issues” if discussions are “misconstrued”. This policy is not written and was never discussed in an open board meeting. Not knowing about this, I had several neighborly discussions with a new board member about an issue that recently came before the Board. 

The board and the management company have advised both me and this new board member that we have violated their “Code of Ethics” and that such conversations should not take place in the future.

This seems un-democratic. How else is a board member to gauge the needs and desires of their fellow owners.

Is there any legal support, or precedent related to this matter? 

L.G., Huntington Beach

Dear L.G.,

A Code of Ethics is a good idea. CAI has a great model Code of Ethics that any HOA could use as a starting point. However, the issue you describe really has nothing to do with ethics.

I understand why a board might adopt a policy banning ANY conversation with members. Some directors cannot resist making decisions or promises without consulting the board, and some homeowners can mistake director remarks as a promise.

However, the policy you describe sounds a little over the top. Directors should talk to their neighbors, and be a part of their community. Homeowners should respect directors’ privacy (no, they are not on 24 hour call), but so long as both directors and members are mindful of the boundaries, a certain amount of interaction is healthy.

Since this policy is not written, it is not a “rule” under the law, and so the board cannot take any legal or disciplinary action in response to violations. I suggest associations focus on the education of directors and members as to not conducting business outside of meetings, and not making promises before the board decides.

Thanks,
Kelly

Dear Mr. Richardson,

We just purchased a condo. But, one of our neighbors is bringing up past parking issues and wanting to change the status quo. We are an HOA of only 3 units, it could easily end up 2 against one. So far the 3rd family is trying to stay out of it, but I’m afraid the others are going to try and pull them in and we’ll be ‘bulldozed.’ What do you suggest and how do we protect ourselves from being a possible 2 against 1 scenario?

V.R., Santa Barbara

Dear V.R.,

Small association, let alone a very small association such as yours, are often run more as a partnership between the neighbors despite the fact that all of the complexities of the Davis-Stirling Act apply. As a practical matter it is difficult to realistically expect that all of the legal formalities will be followed, since such associations rarely have managers, let alone lawyers. A legal dispute in any association is regrettable and to be avoided, but particularly so in the very small project. Yes, your association is a very small democracy. However, hopefully rather than insist upon “majority rules,” your neighbors and you will work more on a consensus basis.

Best to you and your neighbors,
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.