Berding | Weil Community Association ALERT Newsletter
Legal News and Comments for Community Association Boards and Managers Issue #83 • December 2011
And Justice for All
How and why to provide meaningful “notice” and an “opportunity to be heard” to members of a
Community Association
by Steven S. Weil, Esq.
Chapter 15 of Robert's Rules of Order begins like this:
Every organization has the right to enforce its rules and expect ethical and honorable conduct from its members. Most organizations have discipline problems from time to time. A discipline problem may be something as simple as a member misbehaving at a meeting or an officer overstepping the boundaries of his or her office. If the problem is not corrected when it arises, it can escalate into something more serious…
An association has several ways to discipline its members. The fairness and effectiveness of each depends on the nature and context of the misbehavior, the enforcement tools available under the governing documents and the manner in which they are used by the association's board of directors.
Actions Contrary to the Governing Documents
An owner installs a large deck without obtaining or applying for Association approval; a resident's pet is permitted off leash; so much furniture is stored in the garage that vehicles can't fit: these are all common examples of CC&R violations. What are the remedies? How are they implemented?
Most modern CC&Rs permit a board of directors to impose fines, suspend political privileges, limit use of common area amenities and perhaps levy a reimbursement assessments for costs incurred in remedying a CC&R violation.
What is Due Process?
Before implementing these disciplinary actions, the board must, under California Civil Code §1363, first provide the owner with an “opportunity to be heard” at a meeting noticed at least 10 days prior (and notice of adverse action taken within 15 days after). The applicable notice must be delivered personally or via first class mail and set forth “at a minimum” the date, time and place of the meeting, the nature of the violation and a statement that the member may attend and address the board at the meeting. The notice and process must - in the case of a nonprofit mutual benefit incorporated in California - be done “in good faith and in a fair and reasonable manner.”
For “shorthand” we often refer to these principles as providing a member “procedural” due process (fair notice of the time and place of the hearing and the subjects upon which discipline might be based) and “substantive” due process (that the provisions allegedly violated and the penalty imposed bear a reasonable relationship to the use of land and the goal of ensuring compliance with the governing documents and conform to written guidelines like the “schedule of monetary penalties”). It is an interesting question – but far beyond the scope of this article – as to whether the due process required to be given by an association is the same as what must be afforded someone who is the subject of state action under the federal or state constitution. Surprisingly, there is no published case (one that can be cited to a Judge) that applies due process principles to imposition of fines or discipline. However, one unpublished decision decided in 2005 sheds light on what is required.
The Aliusi Standard
In Aliusi v Fort Washington Golf Club, a club member sued to set aside a decision of the board of directors permanently expelling him from the club. The notice of hearing accused him of using profane language to women members of the club and “prior offenses” that prompted a temporary suspension with the possibility of permanent expulsion. At the hearing, the member demanded to know the names of those who complained but the board refused to provide that information (the witnesses may have been intimidated); he denied being vulgar but did admit telling his wife that the ladies were “a bunch of old hags” and that they should “shove their requested apology up their @#%”.


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