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May 13, 2006
Elections Immunity and Liability Questions-Where Is California Going?
I suggest that you watch what is going on in Sacramento. SB 1560 was just amended to remove the immunity clause that would protect Boards from liability for cummunications it is required to send out for candidates in HOA elections in California. Even if the Board tries to instill some reasonable rules about common decency in communications, there is no lid on what a member of the association can send to fellow members, and if the member is a candidate, no lid on what they can say in communications that are sent to the members during an election.
This is what the law currently says about this: [HOAs must] "... Ensure that any candidate or member advocating a point of view is provided access to association media, newsletters, or Internet Web sites during a campaign, for purposes that are reasonably related to that election. Equal access shall be provided to all candidates and members advocating a point of view, including those not endorsed by the board, for purposes that are reasonably related to the election. The association shall not edit or redact any content from these communications, but may include a statement specifying that the candidate or member, and not the association, is responsible for that content."
What was removed from the cleanup language recently? This language: "The association, its directors, officers, and agents shall be immune from liability for the content of such communications and for distribution of such communications."
Now you tell me why it is fair to take out proposed cleanup the very language that would protect Boards from communications the law requires them to send out to members even when the communications include misstated facts, defamatory comments, misleading information, negative, inciteful or downright immoral comments.
If a member wants to send something particularly offensive, he or she can do it under California law. In addition to the election laws, he or she can demand a membership list of names and addresses of members. If members have opted out of being on this list, the Board still has to make alternative arrangements for mailing of member materials (at least in this case it is at the member's expense).
Now most of us who serve associations and try to help Boards work their way through the maze of California laws know from experience that in the vast majority of HOAs, the problem is finding people willing to commit to a board term, not having to try and put a lid on defamatory communications, but for those few associations with contested elections, the law is on the side of the irrationals.
There is a difference between a responsible challenge to Board actions or choices in vendors, managers and attorneys, and a spiteful vent that serves no other purpose than to criticize. There is a difference between being frustrated and being mean-spirited. But some people do not know the difference, and the law protects them.
Given that the legislators in this State are looking at the possibility of a CID Bureau that would allow people to call in and complain about their association boards and probably even managers, and given that the State has shown little or no movement in funding any educational resources that would help volunteer board members cope with the complicated laws or learn how to become fiscally intelligent about budget panning and implementation, I think that Board members should start talking to their local legislators about what they need to be able to do the job. If you know what is going on, you know that some of the State's legislators are bent on implementing laws that would punish Board members. Yes, Virginia, there are Bad Board Members, but I would bet my bottom dollar that there are more uneducated boards than "Bad Boards" and piling on the liability is going to do nothing more than shrink the pool of willing volunteers, which is already very very shallow.
So what can you do? Log onto the State website http://www.sen.gov and plug in any bill number you want to and check it out. You can opt to be put on a list where updates will be sent to you automatically. Visit the site http://clrc.org and see what the California Law Revision Commission is up to. Go to a hearing. Talk to the legislators about how difficult it is to be a board member subject to so many complicated laws without a free educational resource at the state level. Tell them how scary it is to be criticized, threatened with lawsuits, and expected to know about laws that are not published in a language you can understand. The agendas are on the CLRC site. Visit CLAC (the CAI California Legislative Action Committee)at http://www.clac.org and "Responsible Neighbors" at http://www.responsibleneighbors.com to find out about pending legislation and what it means to boards and homeowners in HOAs. And last, but not least, visit the California Guru at http://www.californiacondoguru.com to find out about new laws, proposed changes, how to cope and other things by reading the articles, FYIs, and pointers to the hottest issues in California. And one more thing, there is a plain English guide available on the guru site called "The Davis Stirling Act in Plain English." Its not free, but it's worth its author's weight in gold. Check out the "Publications Available" link on the front page.
Maybe you need to start a movement. (I can help.) If you are a board member or homeowner who follows rules, pays assessments on time, and thinks that is enough, you need to wake up. You and your boards may be hit with more than you bargained for. Already, compliance costs for coping with new complicated laws are rising every year, pushing Boards to increase budgets to the legal maximums, resulting in increased assessments. It takes an educated and experienced practitioner just to help an association cope with required laws and practices and that costs money. Finding board members as liability increases and reward decreases (which is kind of a joke anyway because even if their pay doubles, it will still be $0.00) will become more and more difficult. If you do not have knowledgeable members and leaders willing to serve on the Board because of the liability aspects, or the complicated nature of the laws, you will either end up with the irrationals with personal agendas at the helm, or in receivership. You will not be heard over the complainers, deadbeats and vitriol arising from the anecdotal horror stories that are brought to the legislators in California. I am not suggesting that anyone downplay the bad stuff and let it continue. But what I am suggesting is that the pendulum could swing too far in the direction of punishing innocent board members that the model for a successful HOA could be skewed by the lack of volunteers willing to serve.
So you can sit in your armchair and enjoy your "carefree living" so long as you are willing to pay more and more each year for professional help, or start a dialogue going with others and your own legislators to let them know that the 'balance" of fair treatment of board memhers needs to be considered at every turn, and the State needs to provide a resource for board members so they can learn to do things right - a resource that is free!. And one more thing, since the State relies on Board volunteers to run the entities that save the State from massive infrasctucture costs, some sensitivity must be given to reasonable protections from liability. The State is willing to protect its own in granting immunity from liabilty even for negligent acts to public "servants" (which again, is kind of a joke because they actually get paid), but it is far from giving the same protections to volunteers willing to serve on HOA Boards. This just does not seem fair, and it hurts you more than it hurts me, so get on your soapbox and ask for what you need. The "grassroots" is (or maybe its 'are', for you semantics lovers) a powerful tool.
Posted by Beth Grimm at May 13, 2006 9:01 AM