conflict of interest??

Hi – I have a few questions re conflict of interest and enforcement of rules & regs: HOs may submit a written complaint alleging a violation of a rule/reg. HO is notified for of complaint and then a hearing (prior to a regular BOD meeting) will be held before BOD at which time HO may provide any pertinent info re alleged violation. Later in meeting, BOD will hold executive session to determine whether guilty or not guilty and whether there is a fine. Here is the question: Is it a conflict of interest if (a) the person submitting the complaint is a BOD member and that person participates in the hearing (or, if is the Pres., runs the hearing in addition to participating), and, (b) BOD member who submitted complaint participates in executive session to determine guilt and fine?

Also, if the HO requests the identify of the person who submitted the complaint, must that info be provided?

I am concerned because BOD members have submitted most of the complaints we have received, and, they do participate in hearings and related executive sessions. At our last board meeting, we held a violation hearing – the person who submitted the complaint was the Pres, she ran the hearing, and treated the HO like the Inquisition (no exaggeration), which left me feeling quite uncomfortable.

Thanks for any thoughts on this. -Bonnie

Roger – unfortunately, this has been the way things have been run for about 11 years now. Does this establish a precedent? Can the BOD vote to continue doing things the way we have been doing? I plan to bring this up at the next meeting, but am concerned that some other BOD members will disagree and want to put to a vote. Thank you for your help! Bonnie

Thanks, Roger - that is exactly what I will do. Bonnie

If a situation is a violation of the CC&R's and/or Rules & Regulations, I think that it is my duty, as board president, to report the violation to the management company, so that a hearing may be held. Likewise, I see no conflict of interest when I participate in the hearing. I'm talking about violations such as inappropriate window coverings (paper bags, aluminum foil, etc), parking violations, dog droppings, and the like. If the issue were a conflict situation between myself and a neighbor, I would excuse myself from the hearing.

As President it is your duty to excuse yourself if you are the complaintant. Have you ever seen the complaintant be allowed to be the judge or serve as a juror at a trial? This is a "no brainer".

One other note Bonnie, do your documents say anything about the right to appeal, to be heard by a panel of home owners(not board members)?

Dana

Hi all – sorry for my delayed response; it’s been a busy week! Here goes:
RonaldW: The HOA is the "complainant".

I’ve carefully reviewed the IL Condo Act, and our Declaration, By-Laws and Rules/Regs – there is no mention made that the complainant is the HOA, but instead is the person who submitted the complaint (the HO, BOD member, or managing agent are specifically mentioned).

RogerB: As President it is your duty to excuse yourself if you are the complaintant. Have you ever seen the complaintant be allowed to be the judge or serve as a juror at a trial? This is a "no brainer".

HaroldS: And I agree with Roger that if the person who filed the complaint also sat in judgement; that would be a sorry day for justice.

Amen to that!

DanaB: One other note Bonnie, do your documents say anything about the right to appeal, to be heard by a panel of home owners(not board members)?

I could not find anything referencing a right to appeal the BOD’s decision in: IL Condo Act, nor our Declaration, By-Laws, Rules/Regs. There may be something in the IL Not-For-Profit Act; but, I suspect if there were, it would be included in our docs.

RobertR1: Interspaced throughout all these ansswers you received and others I have read are statements about it concerns what type of violation of a rule is involved. If it is not to bad is some ones eye they will take a different approach to handling or judgeing the case……Interspaced throughout all these ansswers you received and others I have read are statements about it concerns what type of violation of a rule is involved. If it is not to bad is some ones eye they will take a different approach to handling or judgeing the case.

I agree. The BOD should not make any distinctions in how they handle/rule on a complaint/hearing based on either a degree of the violation committed nor on the type of violation. Our Rules/Regs do not make any distinctions. A violation is a violation – regardless of whether it is leaving the trash bins out past the pick-up day or not picking up the dog poop.

Thanks, everyone, for the helpful dialogue! Bonnie

Hi again -

RonaldW said: I'm not sure of the specific reason for your original post but;
If I or another member of the board, ACC, or even a concerned citizen notice trash out on the wrong day, someone painting their shutters the wrong color, parking too many cars in the driveway, etc., why should I be personally identified as the "complainant"? I am volunteering a service to my community that the association members would otherwise be required to pay for (an MC or at least an inspection company).

In response...that is the way the IL law is written, as well as our governing docs. The complainant is specifically either: any member of BOD, employee of BOD, resident, or employee of the managing agent.

We do have a property inspector who periodically walks the property – but his primary purpose is to inspect the condition of the property and identify any needed repairs. He also identifies HOs who do not pick up dog poop, at the BOD’s request.

My original reason for this email was the question: is it a conflict of interest for the BOD President (or a BOD member) to be the complainant, and serve as the judge and on the jury (to borrow words from RogerB). In addition to the reasons various folks have given that this would be a conflict of interest, I came across two articles re enforcement of rules/regs (written by an attorney) which indicate that both the complaining witness and the accused participate in a hearing before the BOD or a hearing committee. They have the right to question one another under the supervision of the BOD or committee chairperson. In addition, our rules/regs state that when the complaining witness signs a written complaint, they are agreeing to “…cooperate in the enforcement procedures and will provide testimony at any hearings which may become necessary.” Can you imagine the BOD Pres. providing testimony and chairing the hearing at the same time? :-)

In any event, I thank you all – I believe that I have the answers and supporting basis for now going forward to my BOD members and our MC on this issue.
-Bonnie