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CONFIDENTIAL DISCIPLINARY HEARING

Started by RichardP13 • 9 replies • 1285 views

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RichardP13 (California)
Posts: 3,868
Posted:
This came out today in a legal newsletter. Thought you might find it interesting reading.

QUESTION: A disciplinary hearing was held in executive session after a complaint was made by one homeowner against another. It was determined the second owner had violated the CC&Rs and he was directed to make corrections.

The disciplined owner put the board's decision on Nextdoor.com and included the name of the person who made the complaint. An uproar spread through the community with people taking sides and some asserting the board should disregard the CC&R restriction. Did the disciplined owner have the right to tell others about the decision? Did he violate the rights of the owner who made the complaint?

Confidentiality. When it comes to disciplinary actions, boards have an obligation to keep such matters confidential. Recipients of the discipline, however, do not. That means your scofflaw has the right to tell everyone about his violation, who turned him in, and the board's decision. Once he did so, he waived his right to confidentiality and the board can publicly discuss the matter.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
I agree. The scofflaw opened the door so now all is fair.
KerryL1 (California)
Posts: 14,550
Posted:
I agree too; however, IMO, to protect itself, the Board should vote at a duly noticed meeting to release this information as no longer confidential.

In our HOA, the names of the original complainers are not revealed to the alleged violator. The reason is that once a member of our staff confirms the alleged violation, the only way we'll send a warning letter or invite the alleged violator to a hearing the HOA becomes the one who's complaining.

( I do realize that if challenged in court, the original complainer might have to be reveals, but in 15 years none of our Board's decisions have been challenged.

The big downside to the case cited is that with the complainer's name spread all over the community, what homeowners will dare complain again about alleged rules violations?? The other downside is the commotion caused in the community
BobD4 (up north)
Posts: 1,002
Posted:
Quote:
Posted By RichardP13 on 08/21/2016 8:35 AM
This came out today in a legal newsletter. . . ."

Richard P13 1 - This sounds fascinating. If there is an internet link, would you be kind enough to share ?

2 - Hope the association refuses to name the complainant and avoids responding to defamation with more that just sets the stage for future repetitions . . .

RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By BobD4 on 08/21/2016 7:44 PM
Posted By RichardP13 on 08/21/2016 8:35 AM
This came out today in a legal newsletter. . . ."


Richard P13 1 - This sounds fascinating. If there is an internet link, would you be kind enough to share ?

2 - Hope the association refuses to name the complainant and avoids responding to defamation with more that just sets the stage for future repetitions . . .


http://www.davis-stirling.com/Newsletters/2016Newsletters/ConfidentialDisciplinaryHearing/tabid/4598/Default.aspx
BobD4 (up north)
Posts: 1,002
Posted:
RichardP13 Thanks very much.

Speaks volumes about complainant confidentiality.

CyrstalB (Maryland)
Posts: 457
Posted:
The board should take the high road, I like Kerry's suggestion, maybe a letter that says it all by not naming anything at all, but instead speaking directly to the HO's what confidentiality means and what their intentions are going forward.

KevinK7 (Florida)
Posts: 1,343
Posted:
I think confidentiality is probably highly misunderstood by everyone.

Like when you record a meeting and get told no because of some "law." I encouraged everyone to get to know what an association is and posted their corporate filings, etc. Those documents had names and addresses of board members and registered agents. The response I got from homeowners was questioning why I would break the law and post "confidential" information despite things like addresses are required for filing (the HOA responded by using the address of a property management company instead in future filings).

I know that if I was found in violation I would go to the community and post. Why? Because there are two sides to a story. In my old community the "HOA" refused to disclose documents or even allow homeowners into membership meetings. The result: those who were aware of the situation were vilified by those kept in the dark. I personally think everything should be transparent.

That being said, disclosing the reporting party may be unnecessary. If there is a violation who cares where the source comes from. One would hope the BoD would recognize habitual reporters who may cross that line into harassment. Like anyone in customer service knows, dealing with angry customers requires a delicate approach. No different here.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Our policy has always been that when the BOD becomes become aware of an alleged violation, a Member of the BOD will investigate the violation. The BOD will even investigate anonymous/verbal allegations just to be sure if they exist or not. If a violation is found to exist, the President of the BOD will report such to the MC thus the President of the BOD becomes the "official" complainer. The NC will write a letter notifying the violator to correct the issue or face fines. The MC follows up and also keep a database report of such for BOD.

Fortunately we have never had anyone really challenge our procedure other than a nasty remark/Email or two. Our MC is a very experienced company in SC HOA laws and they set this procedure up. As our MC has said, part of their job is handling the unpleasant issues like violations, fines, unpaid dues, etc. Their experience is very valuable when it comes to advising the BOD when the problem is none of the BOD's business and advise we drop it back in the lap of the complainant.

Remember one thing. In SC the laws, rules, regulations, etc. generally favor the "corporation/business owner" thus much of what our BOD/MC can do might well be legal/improper in other states. This is great if you are on the corporate/owner side. Not so good if you are not.

BobD4 (up north)
Posts: 1,002
Posted:
Quote:
Posted By RichardP13 http://www.davis-stirling.com/Newsletters/2016Newsletters/ConfidentialDisciplinaryHearing/tabid/4598/Default.aspx

Interesting comments above. Should complainants have any expectation of confidentiality whether or not the only "discloser" turns out to be is an unhappy target of the complaint.

Jurisdiction by jurisdiction, in non-commercial disputes compensation for defamation may turn out to be the only recourse IF at all.

Boards or disciplining committees may present an uncomfortable analogy to anyone participating in alternative dispute resolution ADR. Regardless of contracted commitments to confidentiality, the only 'lips sealed' may be a mediator's and that of counsel bound by solicitor-client. ( In a shocking violation of contracted confidence following a judicial mediation in my jurisdiction, a litigant breached his contracted commitment by actually publishing the breach in his own newspaper. The appeal court however here overturned an award against him obtained by his adversary in lower court. )

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