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November 19, 2007
Angry and/or Frustrated Person Strikes Again in HOA
I wish the following things did not happen. In the past few months I have received emails from owners who have been threatened by board members in a physical way, board members who have witnessed other board members in physical altercations with their fellow board members or with an owner or resident, and board members who have been threatened with physical violence by members of the association, or their tenants or family members, "better ?? halfs", or the criminal element drawn to an association by a resident. I, myself, received a threatening call from a person who turned out to be a board members mentally challenged son, stating that if I came to a meeting up in the outreaches of Northern California I would be chased all the way back to the County line.
What's the matter with people that they believe physical or other threats are appropriate, or worthy, or justified, or rational, or even any kind of solution?? They almost always escalate matters (unless of course the recipient is knocked out, in which case the matter cannot escalate at that moment, but probably will at a later time).
All kidding aside, this is one of the recent notes to me:
"The President of the Board of our HOA struck a member during a heated discussion. Even though the President may have been provoked, I believe the person should be removed from office. What do you think?"
Well, yes! Of course, ... any officer that strikes someone should be removed from office immediately, by the other board members. If the matter involved self-defense, then get help now either from the police, or an HOA attorney, or both!
Any person that holds any position of authority or leadership for the association, including board member, director, manager, vendor, etc., (that has a propensity toward violence or disrespect toward others) is a serious threat to the HOA, not only because of the propensity toward physical violence or other inappropriate actions, but because of the exposure to liability for the actions of that person, through vicarious liability allegations.
Board members and others in a position of authority must exercise restraint, learn some people skills, and live the old addage: "Sticks and stones can break my bones but words can never hurt me." In my book, there is no excuse for hitting someone when a board member is supposed to be acting as a board member (or any other time for that matter).
I except self defense, consistent with the law, which is just enough force to protect yourself or your family, or your property. But if the situation has arisen, it needs attention.
Now you might get a different answer from someone in ... say, ... Texas or Wyoming or in some area of the country where people feel that they may take liberties and fight back in a physical way or with physical threats - but not in a civilized society. Maybe some people consider this appropriate. I read in newspaper right here in California several years ago that at a board meeting in a CID in California, one board member threatened another by telling him or her that he/she (I cannot remember what the sexes were) that the board member had a gun in a shoe box in his closet at home and knew how to use it. Of course, it may not be prudent to quote a newsstory as they are not always correctely reported, but since this was an HOA that had asked me to come and interview with them, the story caught my eye. I declined the interview by the way.
The person who wrote to me about this incident also asked: "Is there a process whereby the Association President can be removed or impeached?"
The other board members can remove an officer from office, in most cases. It depends, of course, on what the bylaws or other governing documents allow. And this, in my opinion, should happen immediately. Removing the person from the board is another story. Recall elections are quite dicey and difficult under the new HOA election law but it is not out of the question. Legal assistance is probably required to get through the maze of laws, and it is not inexpensive. The members can remove a board member from office this way, but the Board cannot do it alone. And HOAs and HOA members must be extremely careful in dealing with recall so as to avoid defamation claims against them. Allegations made publicly better be true and provable, or other issues arise.
A board or member could seek removal of a board member from office by court order (not a cheap process, but perhaps a good choice in some situations), and this situation probably would qualify as far outside of the board members's good faith or capacity as a board member. At the least, in any situation where a board member is threatening physical violence, acting it out, harassing or bothering others, the board should meet with the director, take him or her out of "office" if the documents allow, consider a removal election if the circumstances warrant it, and, next time, calling the police might be in order.
Do you all know that striking someone can lead to a battery claim, both criminal and civil? Do you know that threatening someone in a manner that leads them to believe you will harm them can lead to an assault charge, criminal or civil? Early on in my days as a legal assistant to my brother (who went on to become a San Francisco Public Defender), we had a case we called the $5,000 punch. A civilian was cut off in traffic, and he got mad. He followed the 20-somethings back to their apartment parking lot, drug the driver out of the car and broke his jaw. The "victim" sued the person that called upon my brother to defend, and the "case" settled for $5,000, probably a good deal for the defendant. We always wondered if the punch was worth it.
It is more serious for HOAs as they can be perceived as a deep pocket, the same way as employers often are, and like employers, the entire HOA can pay for the indiscretions of a board member or manager. Thus, the HOA leadership needs to take charge of and deal with situations like this before they get worse, and neutralize parties that may lead to the type of claims identified here.
Posted by Beth Grimm at November 19, 2007 10:24 AM