Due Process

CfD (Virginia)
Posts: 265

Posted:

Question about what entity should be doing due process hearings. In our association, when a homeowner violates a guideline or covenant, the board asks for three homeowners to "hear" what the homeowner has to say about the violation in what they are calling a due process hearing. It is up to this three homeowner interim mini board to make a decision on the violation.

I've never served on one of these, but recently volunteered to be on one because I want to see what is going on for myself. None of these due process hearings are ever noticed to the members, however, and I can't figure out why.

I'd like to know what other associations do in these situations because my first impression with what I'm seeing is we are doing it wrong. I would think if a homeowner needs a due process hearing because they are receiving violation notices then they should appear before the board, but again I don't know.

Please share your views and thank you in advance.

JonD1
Posts: 2,350

Posted:

Sounds like a lot of unnecessary work to handle one violation.

Guess they don't move things along at to great a pace.

Personnally why would any owner sign up to hear details about another owner who is in violation understanding most owners are not familiar with the rules and regulations to begin with.

Who picks this three person mini- board?

Here we send out notification of violation and if the owner wishes to plead their case they can request to appear in front of the board.

Real simple and not to much effort for a minor issue to be dealt with.

Is this process detailed in your documents? Where did this process originate from? Is it based on anything or was this a policy the board came up with?

KerryL1 (California)
Posts: 14,550

Posted:

CfD, what do your governing documents say about violations, hearing procedures, etc.? What do your state laws say about due process in HOAs ? I'm certain they are not silent. Please cite materials from both sources. I do not believe they'll be difficult to locate.

Our docs state a procedure very similar, but a little more detailed, to Jon's and so do our state's civil codes.

JerryD5 (Colorado)
Posts: 218

Posted:

That is the first I have heard of a due process hearing made up of other than board members. In our association, we have only had 2 hearings (same case, same homeowners) in the 6 years I have been on the board. I can't imagine I could find 3 other homeowners that would want to serve on a committee like yours.

In our case, the homeowners can either fix the issue they were notified or ask for a hearing. The homeowners in questions only asked for a hearing once the board decided to fine them. In fact, we fined them twice so we gave them 2 hearings. Each time they emailed their response so the hearing was actually quite brief. They got 5 minutes to state their case and then they left. We gave them our findings in a letter.
Every since then, they have complained how unfairly they have been treated and what a financial burden it has been on them. That didn't stop them from suiing the HOA (they had their case dismissed). Now they are on the hook for a lot more than the fine. They approached our lawyer asking for mercy and relief from their debt. Unfortunately, it is too late since their case was turned over collections. They were told only to contact the collection attorney about their situation.

CfD (Virginia)
Posts: 265

Posted:

Our docs and I believe state law say before a fine can be imposed a homeowner must be granted a reasonable opportunity to appear and be heard. I don't know why homeowners are involved in this process though.

Penalties and Fines; Suspension of Service. In addition or as an
alternative to an action at law or suit in equity, the Board of Directors of the
Association may, with respect to any violation of any covenant set forth herein or
rule published by it or any committee of the Association, and after affording the
alleged violator a reasonable opportunity to appear and be heard, establish
monetary and non-monetary penalties, the amount and/or severity of which shall
be reasonably related to the violation and to the aim of deterring similar future
violations by the same or any other person. Monetary penalties imposed against
a Lot Owner or Unit occupant shall be deemed a Special Assessment against the
Lot of such Owner or on which the Unit occupied by such occupant is located
and, as such, shall be a charge and continuing lien upon such Lot, shall
constitute a personal obligation of the Lot Owner, and shall be collectible in the
same manner as Assessments under Article V of this Declaration. Such
monetary penalties shall not exceed the amounts set forth in the Virginia Property
Owners Association Act or any replacement Act of the General Assembly.
Additionally, the Association, through its Board of Directors or duly appointed
Committee may suspend access to facilities and services provided to Members
as set forth in Section 55-513 of the Code of Virginia (as amended from time to
time) currently known as the Virginia Property Owners Association Act

JohnB26 (South Carolina)
Posts: 1,001

Posted:

Sounds like you have established a 'home brewed' Kangaroo Court system.

What do your Covenants say re: appeal of a violation fine ?

What does your State Law (if any) say ?

What does your, or the corporate, attorney say ?

What do I, personally, say ?

Answer: Give 'em a fair trial and then hang 'em high !

KerryL1 (California)
Posts: 14,550

Posted:

CfD, withOUT looking at your past posts, it's easy to recall that your Board and one or more committees at your HOA don't do much of anything correctly. Some might even be illegal. And you keep asking us for confirmation when I'm pretty sure you know the answers to the various "issues" you bring up. You often insert these in others' threads too.

My question is: why don't you and other likeminded owners in your HOA do something about your rogue Board?? We on this forum cannot change your HOA's Board. Only action by you and others can fix the problems in your HOA.

(I do think that FL HOAs might be able to have something like Compliance Committees that aren't comprised of directors. I'm not sure though.)

JonD1
Posts: 2,350

Posted:

So if someone drops litter on the property and wishes to argue the violation we have to sent up a three owner mini- board to hear testimony and then report their findings back to the REAL board who then decides how to handle this violation.

And where are the guidelines for the operation of this panel? Certainly, we need to have a handbook for their operations.

Never knew Virginia was so much like California in their process.

My guess the brain child of a constitutional zealot.

Lots of overkill for what should be a simple process. Sounds like the process in a capital criminal matter rather than an HOA violation.

Can the violator appeal it to the Supreme Court?

NpS (Pennsylvania)
Posts: 4,216

Posted:

The big question I have is how many units? In a 100 unit community, a separate review committee is probably silly. In a 2,000 unit community, whole different story.

Re the quoted regs, I see that it says "... after affording the alleged violator a reasonable opportunity to appear and be heard ..."

Doesn't say that the appearance must be before the Board. Doesn't say that the Board can't delegate the hearing responsibility to others just like they can with any committee. So it comes down to whether this procedure is "reasonable." And IMO, the biggest consideration on reasonableness is size of the community.

Sikubali jukumu. Read all posts at your own risk.

KerryL1 (California)
Posts: 14,550

Posted:

I did see what you're saying too, NpS, but the state law says the board can set up, etc., etc., and the Board establishes the penalties. So while the passage doesn't say "by whom" the alleged violator should be heard, It kinda looks to me that it means the Board.

That's one reason why I asked CfD to cite his own documents, which he hasn't done yet.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By KerryL1 on 03/25/2015 4:11 PM
I did see what you're saying too, NpS, but the state law says the board can set up, etc., etc., and the Board establishes the penalties. So while the passage doesn't say "by whom" the alleged violator should be heard, It kinda looks to me that it means the Board.

I see it the other way round. The paragraph says Board for some things and Committee for some things. Because there is no reference to Board here, I would read it as open ended. If the legislators wanted to restrict it to the Board, all they had to do was say so. But they didn't.

Sikubali jukumu. Read all posts at your own risk.

RichardP13 (California)
Posts: 163

Posted:

FYI..Here is a link to such language in an HOA in Virginia. The due process rules are cited on page 27

http://www.burbagegrant.org/files/BGOA%20Rules%20and%20Regulations%202010.pdf

GlenL (Ohio)
Posts: 5,491

Posted:

One of the big complaints we've had here over the years is about Boards acting as prosecutor, judge, jury and executioner. It seems this Board is making an effort to level the playing field much as Florida did with mandating a committee with no ties to the Board review and approve all fines before they apply.

Studies show that 5 out of 4 people have problems with fractions

TimB4 (Tennessee)
Posts: 21,059

Posted:

Cf,

As you know, VA requires hearings before suspension of privileges or monetary penalties can be imposed.

I've been on both sides and the hardest thing to do (regardless of which side you are on) is to keep an open mind and see the issue from different perspectives.

Typically, when the issue gets to a hearing, there is enough documentation to show that a violation does in fact exist. Occasionally, there are some mitigating circumstances or language that is open for interpretation. There may even be personality conflicts involved between the two parties. Just remember that the goal is to have the violation resolved.

Usually, if the violation exists, we offer one last opportunity to bring the issue into compliance by mm/dd/yyyy or penalties would begin. We have (fortunately) never had to go past that phase for any issue I have been involved with.

Each Association should adopt procedures for these hearings. However, many also simply wing it. Basically, we heard each side present it's evidence (starting with the accuser) and ask follow up questions. We also have each person on the panel (in our Association, it's the Board) independently look at the issue on there own prior to the hearing. This minimizes some questions and helps you to better understand the issue.

Hope this helps,

Tim

CfD (Virginia)
Posts: 265

Posted:

Thanks to all for your input...even you Kerry

I did share what our governing docs say, but think you simply overlooked them.

In this case I really don't know what is considered proper, but I'm thinking homeowners at large should not be part of this process. When violations occur in our HOA, our docs and state law permit the association to fine whoever is in noncompliance. Our property manager typically makes the neighborhood rounds and is the first to usually see a violation, but it is our ASC that our governing docs task with enforcing our guidelines and covenants, and it is usually the ASC and board that hand selects which homeowners to ask to formally "hear" the violating homeowner. These due process hearings are required only before a fine can be imposed. Otherwise, I don't see why they are even needed.

I believe any homeowner can bring legal council to one of these due process hearings, and that is why I believe the board should be hearing them. Our board hand selects homeowners who may be friends of the violator and willing to look the other way, even when the facts are indisputable.

Our homeowners typically don't know what goes on at the board and committee level, and I believe the vast majority simply do not care. They pay their dues and look the other way as long as nothing directly affects them. Recalling a board that continues to violate our governing docs and state law may seem like a no brainer, but when you are the only person going to meetings and watching what unfolds it is essentially impossible.

Anyway, thanks for the views on this.

KerryL1 (California)
Posts: 14,550

Posted:

I appreciate your civility CfD. I see the passage you cited, but mistakingly thought it was your state statute, not your own governing doc. And then I interpreted it differently than NpS.

If you want to to know opinions about how your Board proceeds, I agree with you that I wouldn't want to be judged by other H/Os who're hand-picked by the Board.

Does your state or HOA allow an appeal to the board? Like NpS, how many dwellings in your HOA? Have a sense of owner occupied %??

On the other hand, as Tim point out and is almost always the case in my HOA, there are several witnesses who report to the PM or access control officer (ACOs), who confirm the violation. Those individual are the "witnesses," not the original residents who complained. If it's a bike stored on a balcony, easy to confirm. If a resident uses their balcony to dry clothes, easy to confirm. Loud party after hours, easy to confirm. So, owners rarely show up for hearings as there's nothing to dispute or deny.

We have one coming up that's I'm not sure was confirmed. Owner goes into elevator after his run, and continues his jogging activity. Sets off the e'quake sensor mechanism. Elevator stops and he's trapped. Otis guy must come (over an hour later) and release him. We must pay OT of about $1,500. The owner's coming to the hearing to contest the fine (to pay Otis). Two reports by Otis confirm that "Al" was jogging in place and caused the elevator to stop. But they can only make an educated guess, which probably is correct.

Al does not not believe it was sufficient to stop the elevator. He believed the elevator stopping was a coincidence. I do not know why, YET our PM, who invites owners to hearings, did not tell us in her report that the elevator cam confirmed him jumping. Just got our board pak yesterday.

Anyway, CfD, throwing out a rogue board and voting in a good board is a no brainer, but is very difficult. There has to be a critical mass of like-minded owners. And it seems like you're the one who needs to gin up support for a change. Not all of us can fill that role. But I'd say, even if your'e really shy with others and have no owner friends in your HOA, get it started!!

NpS (Pennsylvania)
Posts: 4,216

Posted:

I guess the problem I am having with this thread is I just don't understand the underlying issue.

As I think about it, a Board can handpick a Committee. That Committee serves at the pleasure of the Board and is subject to the same fiduciary responsibilities as a Board member. They are accountable to the Board.

I don't understand the concern about the Committee members being a bunch of HOs - So are the Board members. The only issue is that the Committee needs to be educated on its obligations to protect private information - just like the Board hopefully does. Is there a risk of information leaking out - sure - and it's probably greater with more people informed - but if policies are set up and followed, should work ok.

Finally, IMO the fines must come from the Board. The Committee probably makes recommendations and the Board might rubber stamp those recommendations - but under the BJR, the Board has the right to rely on the Committee's investigations and recommendations.

Should the Board set up its own appeal process? Nice idea. But optional IMO - depending of course on the scope of the issues and size of the fines - But those IMO are policy decisions that each HOA should make on its own.

Just my opinion tho.

Sikubali jukumu. Read all posts at your own risk.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

My experience is that an owner can appeal any committee decision to the highest authority in the HOA. The BOD.

Now in any system there can be problems. In the case of an "independent" hearing committee, how independent are they can be a result of who picked them. Let me pick them and they will go the way I want. Otherwise, why would I pick them? Be real people. Unless they were truly randomly picked, there could be shenannigans.

If one is not happy with the BOD, then stop whining and work toward throwing them out versus cry in one's beer. Poor me. No one understands me. Suck it up.

CfD (Virginia)
Posts: 265

Posted:

Your points are interesting NpS. If you don't mind please review section C of this Va. statute and share how you believe a due process hearing should happen in Virginia.

https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+55-510.1

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By CfD on 03/27/2015 11:55 AM
Your points are interesting NpS. If you don't mind please review section C of this Va. statute and share how you believe a due process hearing should happen in Virginia.

https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+55-510.1

Cf
I do not live in an open meeting state, so I an not familiar with these requirements and limitations, or how they are actually applied in practice.

Would be helpful to me if someone from an open meeting state explained how some things typically work:
1. Are ACC meetings open?
2. Is the discussion of whether fines will be applied open?
3. Is the HO's appeal hearing open to that HO only or to the entire membership?

Thanks.

Sikubali jukumu. Read all posts at your own risk.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By NpS on 03/27/2015 12:51 PM

Would be helpful to me if someone from an open meeting state explained how some things typically work:
1. Are ACC meetings open?
2. Is the discussion of whether fines will be applied open?
3. Is the HO's appeal hearing open to that HO only or to the entire membership?

Thanks.

1) Yes. All Board meetings and all Committee meetings are open to the membership except executive sessions of the Board or committee. This is per statute.

2) The decision must be done and recorded in the minutes of an open meeting. Discussions may be in executive session but are not required to be. Most Associations will utilize executive sessions. This is also per statute.

3) Hearings may be in executive session but are not required to be. Most Associations will utilize executive sessions. Our Board actually gives the member the option. This option is presented as part of the Notice of Hearing that we send to the member. Typically, the request executive session.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By TimB4 on 03/27/2015 1:36 PM

Posted By NpS on 03/27/2015 12:51 PM

Would be helpful to me if someone from an open meeting state explained how some things typically work:
1. Are ACC meetings open?
2. Is the discussion of whether fines will be applied open?
3. Is the HO's appeal hearing open to that HO only or to the entire membership?

Thanks.

1) Yes. All Board meetings and all Committee meetings are open to the membership except executive sessions of the Board or committee. This is per statute.

2) The decision must be done and recorded in the minutes of an open meeting. Discussions may be in executive session but are not required to be. Most Associations will utilize executive sessions. This is also per statute.

3) Hearings may be in executive session but are not required to be. Most Associations will utilize executive sessions. Our Board actually gives the member the option. This option is presented as part of the Notice of Hearing that we send to the member. Typically, the request executive session.

Thanks Tim. Cf, would your answers to my 3 questions be the same as Tim;s?

Sikubali jukumu. Read all posts at your own risk.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Np, Cf is also in VA. Therefore, the requirements by statute are the same. The interpretation and exercising options (hold in executive session or not) would be Association specific.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Was aware that Cf is also from VA. Cf asked for my take on the VA statute. Before I did, I asked for an explanation of practices. You described how yours worked. Although the statute may be the same for both of you, Cf might answer my questions differently.

Sikubali jukumu. Read all posts at your own risk.

CfD (Virginia)
Posts: 265

Posted:

NpS and Tim,

I attended the SEVA-CAI trade show and education expo today. As you can imagine, I asked many questions.

Pertaining to due process, it was the opinion of the three excellent attorneys I asked that all due process hearings should only be done by officers of the association. In their opinion it was because they were the ones with the fiduciary responsibility to the membership, and therefore forced to do the right thing...supposedly. According to them, homeowners at large have no business being involved in due process hearings. Tim, one of the attorneys was Elizabeth White with LeClairRyan.

All agree that our association operates bass ackwards. While Arch meetings are supposed to be open, we don't have them open.

One thing I learned new today...Virginia does not permit fines. They are called "Charges". Apparently a distinction upheld in court multiple times. Go to court trying to collect fines on a homeowner and you will lose.

All meetings are supposed to be open, as you know, but our due process hearings are completely top secret. Go figure.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Cf
Other than the word itself, what's the difference between a "fine" and a "charge"?

Sikubali jukumu. Read all posts at your own risk.

CfD (Virginia)
Posts: 265

Posted:

Not 100% sure NpS, but I believe it may somehow involve interest accrued on any "charges". Not sure if an HOA in Virginia can collect interest on a "fine" that is never paid, but I think they can on any charges attached to the assessment.

https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+55-509.3

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By CfD on 03/28/2015 6:56 PM
Pertaining to due process, it was the opinion of the three excellent attorneys I asked that all due process hearings should only be done by officers of the association. In their opinion it was because they were the ones with the fiduciary responsibility to the membership, and therefore forced to do the right thing...supposedly. According to them, homeowners at large have no business being involved in due process hearings.

Lawyers tend to give you the most conservative answer possible, but those are not always the best answers in every situation. Let's say that there is a 2,000 unit community with a $5 Million annual budget. Let's say the average "charge" is $50 and the association issues 500 violations per year. Total charges issued = $25,000 = One-Half of One percent of the annual budget. IMO, it would be nuts for the Board to have to offer 500 hearings a year to deal with one-half of one percent of the business. There will never be time for anything else.

Of course I have given an extreme case, but the point that I am making is that HOAs should be run like ordinary businesses. And that means that first and foremost the financial impact must be considered - and if the Board would spend too much time on a minor financial issue, that means they are not spending that time on the important stuff.

As I said in my earlier post, committee members also have fiduciary duties. And they are typically covered under D&O insurance - because out there in the real world, real corporations do not force an executive board to participate directly in every decision that could affect someone's rights.

Sikubali jukumu. Read all posts at your own risk.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By CfD on 03/27/2015 11:55 AM
Your points are interesting NpS. If you don't mind please review section C of this Va. statute and share how you believe a due process hearing should happen in Virginia.

https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+55-510.1

Quote:

Posted By TimB4 on 03/27/2015 1:36 PM

Posted By NpS on 03/27/2015 12:51 PM

Would be helpful to me if someone from an open meeting state explained how some things typically work:
1. Are ACC meetings open?
2. Is the discussion of whether fines will be applied open?
3. Is the HO's appeal hearing open to that HO only or to the entire membership?

Thanks.

1) Yes. All Board meetings and all Committee meetings are open to the membership except executive sessions of the Board or committee. This is per statute.

2) The decision must be done and recorded in the minutes of an open meeting. Discussions may be in executive session but are not required to be. Most Associations will utilize executive sessions. This is also per statute.

3) Hearings may be in executive session but are not required to be. Most Associations will utilize executive sessions. Our Board actually gives the member the option. This option is presented as part of the Notice of Hearing that we send to the member. Typically, the request executive session.

Cf's response to these 3 questions is that everything is done in closed session. No need to discuss, as this is a blatant violation of 55-510.1a.

Due process is about notice and the opportunity to be heard. In Tim's HOA, no problem with notice. So the question is, ASSUMING Tim's ACC held the the appeals hearings, would 55-510.1 would be satisfied. Tim's ACC meetings are open which satisfies 55-510.1a.

Under 55-510.1c, "any subcommittee or other committee" may address "matters involving violations of the declaration or rules and regulations" and "discuss and consider the personal liabilities of members" - and if they agree in open session, they can move the discussion to executive session. What is decided in open session by the "subcommittee or other committee" becomes effective upon return to open session and voted on.

55-510.1c doesn't change my thinking at all. "Subcommittee or other committee" would easily apply to an ACC. IMO, they can go into executive session to "discuss and consider the personal liabilities of members." Tim rightfully says that these decisions can be made in executive session - and I really like his HOA's approach that the HO is given the option. Yet I see no reason why Tim's ACC couldn't perform these same responsibilities. In my view, 55-510.1c would allow it.

Sikubali jukumu. Read all posts at your own risk.

NpS (Pennsylvania)
Posts: 4,216

Posted:

REDO:

Quote:

Posted By NpS on 03/29/2015 5:44 AM

Posted By CfD on 03/27/2015 11:55 AM
Your points are interesting NpS. If you don't mind please review section C of this Va. statute and share how you believe a due process hearing should happen in Virginia.

https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+55-510.1

Quote:

Posted By TimB4 on 03/27/2015 1:36 PM

Posted By NpS on 03/27/2015 12:51 PM

Would be helpful to me if someone from an open meeting state explained how some things typically work:
1. Are ACC meetings open?
2. Is the discussion of whether fines will be applied open?
3. Is the HO's appeal hearing open to that HO only or to the entire membership?

Thanks.

1) Yes. All Board meetings and all Committee meetings are open to the membership except executive sessions of the Board or committee. This is per statute.

2) The decision must be done and recorded in the minutes of an open meeting. Discussions may be in executive session but are not required to be. Most Associations will utilize executive sessions. This is also per statute.

3) Hearings may be in executive session but are not required to be. Most Associations will utilize executive sessions. Our Board actually gives the member the option. This option is presented as part of the Notice of Hearing that we send to the member. Typically, the request executive session.

Cf's response to these 3 questions is that everything is done in closed session. No need to discuss, as this is a blatant violation of 55-510.1a.

Due process is about notice and the opportunity to be heard. In Tim's HOA, no problem with notice. So the question is, ASSUMING Tim's ACC held the the appeals hearings, would 55-510.1 would be satisfied. Tim's ACC meetings are open which satisfies 55-510.1a.

Under 55-510.1c, "any subcommittee or other committee" may address "matters involving violations of the declaration or rules and regulations" and "discuss and consider the personal liabilities of members" - and if they agree in open session, they can move the discussion to executive session. What is decided in executive session by the "subcommittee or other committee" becomes effective upon return to open session and voted on.

55-510.1c doesn't change my thinking at all. "Subcommittee or other committee" would easily apply to an ACC. IMO, they can go into executive session to "discuss and consider the personal liabilities of members." Tim rightfully says that these decisions can be made in executive session - and I really like his HOA's approach that the HO is given the option. Yet I see no reason why Tim's ACC couldn't perform these same responsibilities. In my view, 55-510.1c would allow it.

Sikubali jukumu. Read all posts at your own risk.

CfD (Virginia)
Posts: 265

Posted:

A violation notice is not a fine, or in our case, a charge. "Enforcement" is and should be a last resort in the process to get a homeowner to voluntarily comply with any rule or guideline. Fortunately, the homeowners in our association only reach a due process situation perhaps a handful of times per year. In this respect our board does a good job, except for asking for homeowner volunteers to due the work they should be doing.

Boards are elected by the membership while committees are appointed by the board. That is an important distinction. The board is ultimately legally responsible for any action or decision any committee makes in any capacity.

NpS, I can already tell you disagree and that no amount of reasoned logic will get us to a point where we agree, so perhaps we can agree on that.

CfD (Virginia)
Posts: 265

Posted:

NpS, I did ask Elizabeth White about the point you are making about committees. She was clear in her distinction in cases involving violations and due process. In these situations committee members of a due process hearing should be comprised of "officers" of the association. So three of our five board members would suffice.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By CfD on 03/29/2015 5:56 AM
A violation notice is not a fine, or in our case, a charge. "Enforcement" is and should be a last resort in the process to get a homeowner to voluntarily comply with any rule or guideline. Fortunately, the homeowners in our association only reach a due process situation perhaps a handful of times per year. In this respect our board does a good job, except for asking for homeowner volunteers to due the work they should be doing.

Boards are elected by the membership while committees are appointed by the board. That is an important distinction. The board is ultimately legally responsible for any action or decision any committee makes in any capacity.

NpS, I can already tell you disagree and that no amount of reasoned logic will get us to a point where we agree, so perhaps we can agree on that.

The question you asked me was how I thought the VA statute applied. My answer was that I could find justification in the statute for the ACC holding the appeal hearings. I gave you my logic - I gave you my business rationale and my assessment of your statute.

You and I agree that violation notices are a last resort. The only threat notices we have sent out in the last 2 years were for parking on the street during snow clearing - and although we could, we never actually charged anyone a fee for those violation. We don't even have an ACC, so if we did have an appeal it would have to be before the board.

I also understand the logic of the well respected lawyer that you relied on. Someone approached her at a conference and asked a question. Under those circumstances, she is going to give you the most conservative answer she can - not because it's the only answer - but because she is protecting herself from potential liability. She doesn't know if you have good policies that are consistently applied. She doesn't know how your board monitors the activities of your committees. It is therefore safest for her to simply give you the most conservative answer - which it to have the board do it. And it is probably safest for you to follow that advice.

Yes the board is ultimately responsible. But that's not a reason not to delegate. If you go back to my earliest post, you will see that I talked about the board (not the committee) applying the fines - and it being ok for the board to apply the fines based on the recommendations of the committee. For that to work, you would need effective policies, procedures and oversight.

IMO, being elected is not as much of criteria as having solid policies that are consistently followed. I know of organizing docs (not mine) that say an Officer does not have to be a board member but only the board members are elected. And corporations have a wide range of choices for creating Officer positions (not just Pres, VP, Secy, Treas).

I don't disagree that in your specific situation, the advice of that lawyer makes sense to follow - especially where you have not yet resolved the open meeting issue.

Best of luck.

Sikubali jukumu. Read all posts at your own risk.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By NpS on 03/29/2015 5:44 AM
Yet I see no reason why Tim's ACC couldn't perform these same responsibilities. In my view, 55-510.1c would allow it.

Since we were talking about monetary penalties, I only mentioned our Board.
In reality, the ACC does hold an initial hearing to try and resolve the issue. If it can't be resolved, the issue is then kicked to the board. Although the ACC could technically apply monetary penalties they are uncomfortable doing so. Therefore that decision rests with our Board. Process is:

informal warning
formal warning
formal notice
notice of hearing before the acc
results of ACC hearing (additonal time authorized, kicked to board, etc)
notice of hearing before Board
results of hearing before Board (monetary penalties if not fixed by mm/dd, no violation found, etc)

CfD (Virginia)
Posts: 265

Posted:

NpS, I did not approach her, I sat in on her 90 minute educational session titled: "Warning: Wind Gusts Violations and Enforcement Best Practices"

There were about 100 other property managers, board members, and attorneys in the room with us. I think she offered a response that was generally agreed to be accurate by everyone in the room.

Nice try though

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By TimB4 on 03/29/2015 7:49 AM
Posted By NpS on 03/29/2015 5:44 AM
Yet I see no reason why Tim's ACC couldn't perform these same responsibilities. In my view, 55-510.1c would allow it.

Since we were talking about monetary penalties, I only mentioned our Board.
In reality, the ACC does hold an initial hearing to try and resolve the issue. If it can't be resolved, the issue is then kicked to the board. Although the ACC could technically apply monetary penalties they are uncomfortable doing so. Therefore that decision rests with our Board. Process is:

informal warning
formal warning
formal notice
notice of hearing before the acc
results of ACC hearing (additonal time authorized, kicked to board, etc)
notice of hearing before Board
results of hearing before Board (monetary penalties if not fixed by mm/dd, no violation found, etc)

I like it. 2 levels. Board doesn't have to hold a hearing, except on an appeal from an appeal.

Sikubali jukumu. Read all posts at your own risk.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By CfD on 03/29/2015 8:07 AM

NpS, I did not approach her, I sat in on her 90 minute educational session titled: "Warning: Wind Gusts Violations and Enforcement Best Practices"

There were about 100 other property managers, board members, and attorneys in the room with us. I think she offered a response that was generally agreed to be accurate by everyone in the room.

Nice try though

Doesn't change my opinion. Whether you spoke to her individually or she was speaking to 100 people, in that kind of setting she is going to offer the most conservative advice that will apply to every potential association.

I really do like Tim's 2 tier approach.

Sikubali jukumu. Read all posts at your own risk.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Sikubali jukumu. Read all posts at your own risk.