« May Residents Plant Flowers in the Common Area? | Main | Managers Giving Advice On Amending Docs - Be Careful ... »
July 5, 2007
HEARINGS - Open Or Closed, What's the Standard?
People have considerable confusion about disciplinary hearings in California HOAs, or are they called "disciplinary meetings"? The law in California sort of confuses things. Here is a question from a reader (and then below is some commentary about how to interpret it and make good use of the "meetings", and the Davis Stirling provisions).
"We been sent a letter from our HOA 'Notice to Appear at Hearing'. Our Rules and Regulations say that the hearing shall be a public hearing and shall be open to all owners. Since we are under the understanding that this is a public hearing we hired a stenograher to attend our hearing. The representitive from the management office stated that we can not do this, it is not allowed unless we have their permission to be recorded. Is this true? "
There are a lot of questions in this seemingly simple question and concommitant statements. I do not have the documents for this association but will say that I believe the proper way to interpret whether the documents or law controls about timing and other requirements for disciplinary action, revolves around this conceptual idea: if the documents require more steps or procedures, or more information than the Davis Stirling Act, and timelines that favor the owner subject to discipline, the documents probably will be considered controlling if the statute is silent about control. This is because the law commonly addresses the minimum standards for due process, and the documents may require more.
Here is what the Davis Stirling Act requires:
Civil Code Section 1363(h): "When the board of directors is going to meet to consider or impose discipline upon a member, the board shall notify the member in writing, by either personal delivery or first-class mail, at least 10 days prior to the meeting. The notification shall contain, at a minimum, the date, time, and place of the meeting, the nature of the alleged violation for which a member may be disciplined, and a statement that the member has a right to attend and may address the board at the meeting. The board of directors of the association shall meet in executive session if requested by the member being disciplined. If the board imposes discipline on a member, the board shall provide the member a written notification of the disciplinary action, by either personal delivery or first-class mail, within 15 days following the action. A disciplinary action shall not be effective unless the board fulfills the requirements of this subdivision."
This is what the Davis Stirling CID Open Meetings Act (Civil Code Section 1363.05(b) says about exeutive session meetings related to discipline:
"(b) Any member of the association may attend meetings of the Board of the association, except when the board adjourns to executive session to consider ... member discipline, personnel matters, or to meet with a member upon the member’s request, regarding the members payment of assessments as specified in Section 1367 or 1367.1. The Board shall meet in executive session, if requested by a member who may be subject to a fine, penalty, or other form of discipline, and the member shall be entitled to attend the executive session."
So, the question arises: Does the member need to 'request' a closed or executive session hearing or will it happen naturally?
Many boards, upon their attorneys' advice, hold owner disciplinary hearings in closed executive session proceedings. Most tell the owner this in a letter. Some acknowledge that the member may ask for an open meeting. If the documents require an open meeting for any hearing on proposed disciplinary action, then there is a conflict with the law, and a determination has to be made about which will be followed. Boards generally assume that a closed hearing will better protect the owner's privacy but sometimes owners would prefer an open hearing believing that they can convince other owners present that the board is off base, or in order to invite others to speak on their behalf and pressure the board not to impose discipline. There is no case guidance interpreting which position may be more correct when the document and the law collide like this.
As for inviting a stenographer, or taping a meeting, members must have permission of the Board. Taping meetings is not a right. The Board sets the standards and parameters for association meetings. There are a number of reasons why this is important - (this being for a later blog).
Posted by Beth Grimm at July 5, 2007 9:48 PM