Privacy vs. transparency

I am the new secretary on our LOA board. The board of directors for my community association has a long history of minimal involvement in covenant enforcement. The operating theory seemed to be that if only a resident who suspects or observes a violation would talk politely to the alleged violator, then all could be resolved.

A few years ago, a series of egregious violations by an unrepentant resident convinced board members that they needed to take more responsibility for covenant enforcement. The board adopted a policy that sets out steps to follow when allegations of violations are reported by community members. The policy calls for the board to make an inquiry into the situation, provides an opportunity for accused persons to present their case at a hearing by the full board or an adjudicatory panel appointed for this purpose, and specifies fines to be imposed for refusal to correct a confirmed violation.

Complaints about covenant violations are not frequent. The board recently received the first complaint since the policy was adopted. This test case has shown that the enforcement policy needs to address additional questions regarding protecting the privacy of persons involved.

We are trying to achieve a delicate balance between protecting privacy for our members and being accountable to all members for board actions. It would be helpful to know how other associations have resolved such issues. As of now we have two sets of minutes, one for the general public, which contains no information regarding closed session issues such as delinquency issues etc, and another which is not available to the public with closed session information.

Our policy has a paragraph that states “The Board will not disclosure the identity of persons making a complaint or the identity of the landowners involved in enforcement actions. For example, names of such persons will not be published in the minutes. “However, whenever an enforcement activity is underway, the minutes of Board meetings will record the nature of the complaint and what action is being taken without identifying the involved landowners by name.”

I believe that the first sentence of this paragraph was intended to mean that board members should not: identify the person making the complaint to the person accused of a violation, should not discuss enforcement matters with non-board members and should not name names and addresses in the minutes.

Some board members now believe that only the board member receiving the complaint should know the identity of the person submitting the complaint. The argument for this is that persons complaining would like their privacy protected, and the fewer people who know their identity, the less chance of gossip. The argument against this is that it may divide the board into haves and have-nots regarding full information about a situation which the board must consider.

Second, it has become more common for various association members who are not board members to attend the regular board meetings. Therefore, the board went into closed sessions for the meeting with the landowner suspected of the alleged violation as well as discussion of the current enforcement situation. This has given rise to disagreement as to what the minutes should record. The policy currently in effect would lead to a report such as this: “The board met in closed session from 7:00 to 7:30 to discuss a building project under way on a landowner’s property which appears not to conform to the covenants.” It is proposed by some board members to tighten the privacy concern so that the minutes will say only “The board met in closed session from 7:00 to 7:30.” (Period.) Other board members feel that more information should be included, at least to this extent:

“A landowner attended the meeting to discuss new construction on their property. The board went into closed session. The board came out of closed session. The landowner departed at 7:30"

Lastly how a closed session is determined is in question some believe that a closed session should be voted by the board as a whole, with a majority decision others believe the president has the right to determine whether a closed session is appropriate of not.

So basically these are the questions:

1. Should the director receiving the complaint keep the identity of the complaint from the other directors, even if this action is intended to protect the identity of the landowner issuing the complaint?
2. Should the minutes of the Board meeting contain the basic elements of the alleged violation?
3. Is a closed session appropriate (which would result in no information regarding the basic elements of the alleged violation in the public record) in regards to alleged violations?
4. Should the board vote on whether a closed session is necessary or can the president make this determination?
5. Can the general board minutes report nothing at all regarding a meeting that occurred with a landowner who may be in violation? This would result in a period of 27 minutes unaccounted for.

If your experience has something to offer in helping us resolve these issues, I would appreciate hearing from you.

Thanks so much George for your quick reply very helpful. I understand the concept of executive meetings for landowners for the sake of privacy issues, I believe this is appropriate. However at this meeting it was determined by the board that the landowner had to stop construction until further investigation, subsequently, a week or so later, the board sent the landowner a letter stating that the construction was indeed a violation of the operating convents. As of now nothing is in the minutes regarding this potential violation.
If the board had not intervened the violation would have certainly occurred. I'm just confused...shouldn't the board's actions be recorded??

For example I came across this "below" in the hoatalk, It states here that "if there is no verifiable record a decision cannot be enforced". We have asked these folks to not build a dwelling, this dwelling has already building and septic field approval by the county. And we have asked them to stop, if there is no record of our request in the minutes is it possible our decision could be challenged?

Minutes in general:

This is from the Fairfax County Community Association Manual (which is currently being re-written, so there is no link I can provide)

Minutes
- Applicable Virginia statutes and most associations’ bylaws require that factual and accurate minutes be kept of all board of directors meetings, annual meetings, and special meetings of the members. The importance of accurate minutes cannot be stressed enough because often the minutes are the only record of official decisions, directions, and actions of the board. If there is no verifiable record, a decision cannot be enforced. Minutes officially record the time, date and place of each association meeting, the presiding officer and board members in attendance, the subjects discussed, and the actions taken at the meeting. Title and sufficient information to establish its background, the action to be taken if any, and the reasons for the action should introduce each topic. Only important points in the discussion should be recorded along with any decision, and including the votes for or against an issue if voting takes place. A subject or proposal referred to committee or tabled pending further information or discussion should be so recorded in the minutes.

By the way the question of "What is an attached dwelling" came up any thoughts?

Robin

Sorry no edit.

In some states a violator must be given a hearing before fines can commence. I say unless needed, a simple majority vote of the BOD is sufficient to commence action. Do not make unnecessary work for the BOD.

Thanks again to all who have posted. I will share your comments with the others at the next meeting,
any other comments are welcome! Robin

Robin,

Here is the problem with protecting the identity of the initial complainant: it doesn't always work and can be a violation of due process.

In situations where the Association can verify the complaint exists (shed built without approval), it's easier. Similar to the police responding to a call about loud music, they can verify that the music is too loud when they arrive and be the witness.

In situations where the Association can not verify the complaint (pet attacks, failure to pick up after pet, etc.). Then the complainant becomes the witness. If the issue goes to court, or even for the individual to make a defense to the allegation, the name of the complainant will need to be disclosed.

As for your specific questions:

1)"Should the director receiving the complaint keep the identity of the complaint from the other directors" Our Association does the following things:

a) We utilize a committee for initial enforcement. They do this by responding to any complaint received and annual inspections. A member may appeal any decision by this committee to the Board. The Committee, in verifiable complaints, acts as the witness against the member.

b) We insist that complaints be in writing. Where the complaint can not be verified by the Board, that individual is required to show up when the hearing occurs and make their case. If they do not want to do this, then the Board considers that the issue did not occur. If the issue ever has to go to court, this information is discoverable anyway.

c) Prior to any hearing, we issue two warnings (informal and formal) and then the notice for the hearing. We include pictures with the warning when possible (as this shows what everyone is discussing). Like photos on red light cameras, this tends to minimize the complaints of the violation not existing.

d) Directors, by nature of being a Director, have access to all association files. Therefore, refusing to provide the name to other directors may be a violation of statute or governing docs. By utilizing a separate committee for enforcement, we minimize the need for these issues to even become a Board issue. Typically, the discussion is that we have received a complaint about a xyz. Then we discuss the specifics of the issue (not who made it an issue).

2. Should the minutes of the Board meeting contain the basic elements of the alleged violation?

Our minutes simply state that there was a complaint about xyz and what the Board is doing about it, not who was involved in the complaint. Example: The Board received a complaint about a dog attack. The President will write a letter to the dog owner reminding them of the Association pet policy. The President will also write a letter to the complainant advising them of the action done and reminding them that any attack by any animal should be reported to animal control.

3. Is a closed session appropriate (which would result in no information regarding the basic elements of the alleged violation in the public record) in regards to alleged violations?

If you have non-board members attending meetings, I congratulate you. Typically we do not. However, if we did, we would still discuss the issue openly, simply not mention the name of the alleged violator and the complainant.

During a hearing, we offer the alleged violator the option of using an open or closed meeting. Our default is a closed (executive session) meeting. Note: we enter executive sessions from and return to open sessions. Additionally, the open session minutes specify why we went into executive session and what agreements were made. This can still be done without names. Also be aware that executive sessions also require that minutes be kept for that session.

4. Should the board vote on whether a closed session is necessary or can the president make this determination?

Procedures is that the Board always votes to recess to executive session. It's not the option of the President. However, as pointed out above, at hearings, we give this option to the violator.

5. Can the general board minutes report nothing at all regarding a meeting that occurred with a landowner who may be in violation? This would result in a period of 27 minutes unaccounted for.

No. As I said, open meeting minutes should explain the issue.

For example:

At hh:mm the meeting recessed to convene an executive session to discuss (hold hearing) on the alleged violation of a house being painted the wrong color.

At hh:mm the Board returned from executive session and the meeting reconvened. The Board notes that in the executive session the violation was determined to exist and the member was given x days to comply or a fine of $$ per day/week/month would be assessed.

Name & Shame is a figure of speech. There's no real shame involved if the violations are corrected and one is not a persistent violator. A few years ago our board sent out letters re. unauthorized rain gutter extensions that the architectural committee had gotten all bothered about. The letters were read right into the minutes. Those named suffered no permanent harm, heck 2 of them are on the board today. It's not like it's a criminal record or something so heinous that you'll be ostracized forever by the rest of the community. I just don't see it as a big deal. Maybe it is in other HOAs.

Perhaps Crystal's #s 1 & 3 apply to Maine, but they do not apply to all states including CA. I don't know about NC.

Maybe you're right, JohnC. It looked to me like Crystal was giving her understanding of how these disciplinary matters are handled rather than just her opinion.

Anyway, here's a CA attorney's opinion along with the related CA statutes. As we can see, the name of the violator is not revealed to the membership because disciplinary hearings are held in ES. For Robin, the question is what do her own governing docs say and are they in agreement with NC legislation?

DISCLOSING DISCIPLINARY ACTION
QUESTION: When a homeowner files a complaint against a neighbor for a violation of the governing documents, is that homeowner allowed to know the results of any disciplinary action?

ANSWER: Members do not have a "right" to know the results. Unlike the public court system where almost every detail of every criminal and civil action can be published, HOA disciplinary actions are held in executive session and minutes or other documents related to the disciplinary action are not subject to review by the membership. (Civ. Code §4950, Civ. Code §5215(a)(4)(B).)

Reported Generally. Even so, it is allowable to report in open meeting minutes and in the association's newsletter generic information. For example, "During the month of April, disciplinary hearings were held on the following violations: (i) dog not on a leash that resulted in a warning, (ii) nuisance noise from a late night party that resulted in a fine of $75, and (iii) a parking violation that resulted in a fine of $50." This kind of reporting keeps the membership informed without identifying the persons involved.

Read more: Disclosing Discipline http://www.davis-stirling.com/tabid/2873/Default.aspx#ixzz3kzHvpIw4
from Davis-Stirling.com by Adams Kessler PLC.

"Confidentiality rights -if any - of a complaint filer ?"

This is the only part of Robin L7(N Carolina)'s wider topic that I am going to try to address.

Anyone thinking of filing a complaint (to a HOA/condo whatever) that could generate retaliation ( including counter complaints ) from the alleged violator(s), shouldn't be surprised about couple of consequences risked :

1-that onsite rules may require it to be in writing / additional risk of proliferation,

2-that it will be handled and maybe proliferated by a range of skillsets & mentalities including buddies of the alleged violator(s), and

3 that it may run afoul of contrary legitimate rights to due process/ fair defence rights. There may be no genuine confidentiality shield, regardless of onsite rules.

At the risk of daring to cite anything California, several FAQ items at the Kessler Adams site contain opinions that an accused California covenant violator has a due process right to know who filed the complaint.

“Rules Police” http://www.davis-stirling.com/MainIndex/RulesPolice/tabid/2411/Default.aspx#axzz3l3deD1rk

"Due Process" http://www.davis-stirling.com/DueProcess/tabid/730/Default.aspx#axzz3l3deD1rk

“Anonymous Complaints” http://www.davis-stirling.com/tabid/1744/Default.aspx#axzz2seJZavMr

The articles do not cite California judgments. eg "ANSWER: I’m not aware of any law that prevents an association from reporting in its minutes or newsletter that a particular owner lodged complaints with the board. It should be noted that, as part of due process requirements, accused owners have a right to know who their accusers are. . ."

Let us try and clarify:

Some of what I suggest could be illegal in some states but can be done in SC.

1. Does your BOD and/or management company go looking for violations? If so, then they would be the complainant.

2. Does your BOD investigate any complaints to verify? If so then the BOD should become the complainant.

3. Some BOD's want all complaints in writing. While this is a good public policy (it stops some complainers), a BOD would be foolish to overlook any complaint regardless of how presented. The BOD should investigate all complaints no matter how delivered.

4. While I am all for public shaming (name all in public), I can understand a BOD not wanting to do this thus I say dealing with the issues in Executive Session is acceptable. At a BOD meeting I would discuss the nature of complaints and actions being taken (sort of a tally sheet) but shield the name of the person the action is being taken against.

5. If the accused disagrees, I would allow them to present their case in Executive Session and let the BOD rule.

6. If an offender commences legal action (not just threatens it), then I would announce such in a BOD Meeting so all know.

Bottom line is I say let the BOD or MC be the official complainer.