Tips Toward Fairer Disciplinary Hearings

In a perfect world, disciplinary hearings would be unnecessary because members all focused on being good neighbors to each other. However, disciplinary hearings are occasionally necessary, and if disorganized can be a negative experience for both board and homeowner. Consider these suggestions toward improved disciplinary and reimbursement hearings.

1. Give fair notice

Civil Code 5855(b) requires that disciplinary or reimbursement hearing notices contain at least the “date, time, and place of the meeting, the nature of the alleged violation… or … the damage to the common area and facilities for which a monetary charge may be imposed, and a statement that the member has a right to attend and may address the board…” Many associations do not inform the member of the alleged violation. How can the member meaningfully discuss the issue with the board without knowing in advance what it is?

2. Have a published schedule of fines

Civil 5850(a) requires associations to have a list of fines, and that the list is part of the Annual Policy Statement packet (see Civil 5310). All too often, associations lack a written fine schedule, which jeopardizes its ability to impose fines and is also unfair to members.

3. Hold hearings in closed session

Members can demand a closed session, but such hearings should automatically be held that way without a request.

4. Set a reasonable time limit

Disciplinary hearings should not be open-ended. Ten to fifteen minutes should be sufficient for an owner to explain themselves.

5. Let the member know what will happen

The member should be told the time limit, how many copies of information to bring, and if they can bring witnesses. The member wishing to contest the violation should know what is expected of the member at the hearing.

6. Keep the process confidential

Complaining owners often want the board to report on its enforcement regarding a neighbor, but the privacy of the violator should be protected if possible. Similarly, keep the identity of the complainer confidential – reduce risk of reprisals or confrontations between neighbors.

7. Avoid confrontations

If the hearing was initiated by a member complaint, there is no need for the complainer’s presence. The complainer does not have the right to be present, and it could humiliate the other member and escalate the possibility of hostility. This is not a court hearing, and the accused does not have the right to cross-examine witnesses or argue with their accuser. This is an informal proceeding between neighbors.

8. Do not interrupt members while presenting their side of the issue

Let them explain their position, and avoid using their time by arguing or discussing the issue. After the member is finished, that is the time for any questions from the board.

9. Do not deliberate in front of the member

Excuse the member, explaining that the board will now discuss the subject, and will in writing inform the member of the decision within fifteen days.

10. Do not allow the member to speak through surrogates, tenants, or attorneys

This is an informal neighbor to neighbor event.

11. Adopt rules regarding disciplinary and reimbursement hearings

Members should know how the process works.

12. Be reasonable

Neighborly conduct is the goal, and the board should also be reasonable as it consistently enforces the governing documents.

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®.