Working Toward Fairer Disciplinary Hearings

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

Disciplinary hearings are an unfortunate but important requirement of HOA governance because neighbors are sometimes unwilling to be good neighbors. 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 don’t inform members 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 as required by Civil Code 5850(a) to be part of the Annual Policy Statement packet (see Civil 5310). Many associations lack the required written fine schedule, which jeopardizes its ability to impose fines and is also unfair to members. Make sure the fines comply with Section 5850 amount limitations.
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. Remember, hearings are informal proceedings 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. The time for any questions from the board is after the member remarks are complete.
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.