Posted:
According to my old HOA attorney and also HUD monitoring at my current HOA, due process for the accused is key. This means that, before any penalty is imposed on the accused, an investigation has to happen. If the investigation finds that a penalty should be imposed, then a hearing has to be offered.
Here's the paperwork I recommend, using my current HOA's complaint procedure (approved by HUD).
1.
A roughly 3-page procedure adopted by the Board for incorporation into the HOA Rules & Regs, having the following steps and referring to the following forms (which are also a part of the Rules & Regs, in an appendix).
2.
For the accuser, have a form for her or him to fill out, identifying:
--What part of the gov docs were violated, if known.
--Contact information for the accuser
--As Shelia said, who, what, where, when need to be addressed.
--Names of any witnesses, and their contact info if known
--To whom the form should be submitted. Consider using the property manager, who then forwards the sealed, confidential complaint to an investigator.
--The timeframe within which the HOA will acknowledge receipt of the complaint. Seven days seems reasonable.
3.
For the investigator, a multi-part form stating
part (a)
an acknowledgement of receipt, to be returned to the accuser within seven days, stating approximately when the complaint's investigation will be complete and when a final decision will be made.
part (b)
stating who the investigator will be. I recommend a two-person committee of non-directors. This form should also describe the investigation, and whether the investigators recommend a penalty be imposed.
part (c)
If a penalty is recommended, have a form for the accused, stating the outcome of the investigation and that the accused has a right to a hearing to appeal the findings and penalty. The form should offer the accused ten days to appeal the findings and penalty.
4.
A form describing any hearing that took place, describing how all involved parties will have a chance to attend and speak. The investigators will preside at the hearing but will not be the "judges." The investigators will complete this form and make a recommendation to the board.
5.
A form for the board indicating whether it approves the investigators' recommendation, based on the outcome of the hearing. If a minority of the board is among the accused, then the minority board members will neither deliberate nor vote on the investigators' recommendation.
6.
If either the accused or the accuser is not satisfied with the outcome of the hearing and board's decision, then each is offered alternative dispute resolution, with each party bearing his or her own costs during the ADR, and with the losing party paying the costs for all.
7.
If a majority of the board is accused of violating the gov docs, then the accuser will instantly be offered alternative dispute resolution, per the above terms for ADR.
Attorneys are not to be involved. The whole point of a complaint procedure (at the company level, in a university setting, in a HOA setting) is to try to keep people from lawyering up, burdening the courts and costing all way too much money. Attorney involvement should be allowed above, but the attorneys must themselves follow the complaint procedure. The HOA attorney has to follow the above rules as well. Privacy has to be respected. No publication of complaints in minutes should be allowed, for example. Robert's Rules even talks about how, even when an accused is found "guilty," this is not to be published in the Minutes.
The net has lots of HOA sample procedures. Download say ten, and circle the parts that you want your HOA to have.
