Does A HOA Manager have "Persuasive Power and Influence"?

Started by AugustinD • 20 replies • 1205 views

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AugustinD
Posts: 5,144

Posted:

A HOA has long hired employees (not companies) to manage the HOA. I understand this means the HOA is "self-managed." The HOA manager is CMCA certified, with the HOA paying for her continuing education (same for the manager's assistant). CMCA standards emphasize the importance of a HOA manager's being knowledgeable so as to serve as a Board resource. The HOA manager has long given her opinions on various important matters, including legal disputes, vendors to use, and so on. The HOA Manager is frequently called upon to give her opinion on subjective matters. Who here thinks that, within the HOA, the manager could reasonably be described as one who occupies a position of significant "persuasive power and influence"? The point of the question is to determine the merit of an argument that a HOA manager is a "public figure" for libel purposes.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

The MC or the Manager hired is to do what the contracts requires and desires. Now those lines get crossed many times as it's the people who view that person in that position with those such responsibilities. Whether it is true or not, no one is making the effort to correct it.

You only give the power to such positions in a HOA due to laziness, ignorance, or passing the buck mentalities. If your HOA board members who are elected fall into any of these 3 categories, then your Management representative is looked at to take up the slack.

Our HOA, you could have easily said same thing about me as President. We did not have an MC or manager. I was it. As someone in that position, if I did not know the answer, then I paid an expert (lawyer, contractor, accountant) for the one. It was with the HOA budget because it was a HOA issue that a members wanted professional opinions on. Now I could have easily have requested to hire a Management Company with member approval. Either way, your going to have someone in your HOA to focus your problems with your HOA on.

Former HOA President

SheliaH (Indiana)
Posts: 6,964

Posted:

What Melissa said. I realize board members do look to the property manager for guidance (after all, he/she is handling the day to day operations of the organization), but the BOARD is ultimately responsible for providing direction to the property manager because it did the hiring. Thus, they need to learn to think for themselves - it's ok to listen to opinion, but that doesn't relieve them of the responsibility to ask questions, consider the pros and cons of all options, make a decision and see what happens.

AS for libel, I think your question is too broad. The answer will likely depend on what the manager said, the context in which he/she said it, who heard the statement(s) and what happened next. You should also remember the difference between libel and slander - here's a quote from wisegeek.com:

Libel - the written or otherwise printed public defamation of a person or entity

Slander - verbally maligning the reputation or activities of another individual or entity, using information that is known to be false or misleading. Typically, this will involve not only the use of specific words to damage a reputation, but also actions such as hand gestures or facial expressions in order to reinforce the misinformation that is being distributed. Any defamation that is "transitory" — in other words, not fixed in a permanent medium — is usually considered slander.

Note that we're talking about the written word when it comes to libel, so you have to consider who wrote what, how many people saw it and what happened next.

Or just ask an attorney what he/she thinks - I hope you're dealing with a specific situation as opposed to a hypothetical because anything is possible in that case.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

JanetB2 (Colorado)
Posts: 4,219

Posted:

Here is a link you might find interesting:

https://www.hoaleader.com/public/328.cfm

The article states:

Moreover, public figures have a harder time winning defamation claims because they're required to prove that the defamatory statements were made with actual malice, or the intent to harm.

AugustinD
Posts: 5,144

Posted:

To re-phrase somewhat: Generally speaking, is a HOA manager above criticism, that is provably truthful or legitimate opinion, by the Board or by HOA Members? I think most HOA boards cannot be the day-to-day decision-makers of a HOA, especially given the relative infrequency with which Board meet. Many decisions are made by the manager. I think this is why she or he is paid money and the Board is not.

Nationwide, City Managers have been declared "public figures" or "public officials." They are not elected. Their immediate boss is typically the City Council. The City Manager is typically paid a factor several times more than City Council Members. Given that courts have ruled HOAs to be quasi-governmental entities, with significant control over people's living conditions, it seems to me that a HOA manager may be a public figure.

Janet, you see what I am getting at. I wonder if the Colorado court you cited did apply the public figure standard. Cases on HOA Law and defamation do seem to be clear that directors are public figures. From the comments listed at the linked article you provided, and from a lot of study of defamation law and decisions re defamation, I think the only libelous statement in the Colorado case is the one saying the board had its fingers in the cash register (if this was in fact false). If you have a link to the Colorado Supreme Court's decision, I would be interested in reading it.

I do note that courts and the media are quoting the following line quite a lot: "Defining public figures is much like trying to nail a jellyfish to the wall," Sewell v. Eubanks, 181 Ga. App. 545 (352 SE2d 802) (1987)."

This is not an academic matter where I am. I am aware that an attorney may be consulted. For now, I am asking for people's impressions of whether a HOA Manager in a self-managed HOA may be a public figure, on grounds that she or he has, within the HOA, "persuasive power and influence" or achieved "pervasive fame or notoriety" within the HOA. Because this is the standard a court will use.

I have a couple of HOA court decisions pointing in this direction.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Reality check to get you out of the woods here... The board is elected from the general membership to represent the HOA as a "Whole" and to run the HOA. It's considered running the "day to day" operations of the HOA. However, they may decide to hire a MC or manager to do that. However, in the end that manager is doing what the board has approved and contracted to do.

A HOA board doesn't meet on a regular basis and doesn't have to. They meet when the documentation tells them to. It depends if it's open or closed per the law/documentation. We only met 1 time a month. It was an open meeting. Our hired Accountant handled the every day business of our money. I sure did not. It's what we hired them to do. Each month I was handed the checks to sign and had to get a co-signer from the board to pay them. We the board made the decisions and approved each check we signed.

So if that's not happening in your HOA do NOT generate that to ALL HOA's. Each one is different and operates differently. You don't like how your HOA is operating, then you run for the board. If you don't want to make that effort, then you volunteer to do something or attend meetings. You don't be apathetic.

There is no great conspiracy and power trips here. You give those people that power yourself if you believe it to be true. Otherwise it's people being paid to do the job they were hired for.

Former HOA President

AugustinD
Posts: 5,144

Posted:

Melissa, is a HOA manager above criticism, that is provably truthful or legitimate opinion, by the Board or by HOA Members?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

No one is above criticism. You want to criticize by all means do. That is up to you to do that.

Former HOA President

RichardP13 (California)
Posts: 3,868

Posted:

Does A HOA Manager have "Persuasive Power and Influence"? In many cases, yes. For some of us, that is what we trained and educated ourselves in. Less that one in five on an HOA Board take an active role in the management of their association. Topics have come up where HOA Boards are dissatisfied with a manager who doesn't write for violations. Some say the manager works under the direction of a Board. What if the Board doesn't want to get involved, look like the bad guy. I can write violations until I am blue in the face, but I can't take any disciplinary action.

Do I give legal advice, NO. Do I give the legal opinion, YES. I go to a number of legal seminars throughout the year. The opinions that are shared by attorneys or generally passed on to clients, free of charge. You ever see anything in writing that says the information received at these seminars can't be passed on? As people here n=know, www.davis-stirling.com is the go to place for HOA information for California. two-thirds of that website is legal opinions, which I share all the time. If I get three opinions on the same topics, I generally go with the one I most agree with, which a Board may do the same. In medicine, if we don't like the first opinion, we may opt for a second one.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By RichardP13 on 11/11/2017 12:35 PM
Does A HOA Manager have "Persuasive Power and Influence"? In many cases, yes. For some of us, that is what we trained and educated ourselves in. Less that one in five on an HOA Board take an active role in the management of their association. Topics have come up where HOA Boards are dissatisfied with a manager who doesn't write for violations. Some say the manager works under the direction of a Board. What if the Board doesn't want to get involved, look like the bad guy. I can write violations until I am blue in the face, but I can't take any disciplinary action.

Do I give legal advice, NO. Do I give the legal opinion, YES. I go to a number of legal seminars throughout the year. The opinions that are shared by attorneys or generally passed on to clients, free of charge. You ever see anything in writing that says the information received at these seminars can't be passed on? As people here n=know, www.davis-stirling.com is the go to place for HOA information for California. two-thirds of that website is legal opinions, which I share all the time. If I get three opinions on the same topics, I generally go with the one I most agree with, which a Board may do the same. In medicine, if we don't like the first opinion, we may opt for a second one.

Thank you, Richard. Hearing from your end helps. As a board member and HOA member, I expect the HOA manager to give advice based on her or his experience. I think it is a large part of what members' assessment dollars (for employee salaries) is paying for.

GenoS (Florida)
Posts: 4,276

Posted:

If you're thinking about saying or writing something accusing someone of improper behavior AND you're worried that said someone will sue you for defamation, be very sure you know how deep their pockets are. The annals of litigation are full of people who will bring a lawsuit knowing full well that they don't have a case, but with a strategy based on the liklihood that they'll be able to hold out longer with legal expenses than you will. I suppose that applies to more than just libel and slander cases.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By GenoS on 11/11/2017 2:12 PM
If you're thinking about saying or writing something accusing someone of improper behavior AND you're worried that said someone will sue you for defamation, be very sure you know how deep their pockets are. The annals of litigation are full of people who will bring a lawsuit knowing full well that they don't have a case, but with a strategy based on the liklihood that they'll be able to hold out longer with legal expenses than you will. I suppose that applies to more than just libel and slander cases.

I would be concerned that this attitude may translate to board members pussyfooting around serious incompetence and improprieties because they fear a lawsuit. Perhaps the question is: Which will cost more in the long run: (a) informing the manager of how deficient she is (with concrete, constructive criticism), or (b) ignoring the deficiencies because one fears a lawsuit without merit that will nonetheless cost all a great deal financially and emotionally? Whatever happens, I am not going to be the one who throws the first legal punch. If the matter goes to court, where I live I am of the understanding that the judge will want to string up the plaintiff as soon as he or she sees the phrase, "homeowners' association."

GenoS (Florida)
Posts: 4,276

Posted:

I think if I had all my ducks lined up I'd rely on the truth being an absolute defense. And go for it.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By GenoS on 11/11/2017 3:11 PM
I think if I had all my ducks lined up I'd rely on the truth being an absolute defense. And go for it.

Thank you. From where I am sitting: Truth, "qualified privilege," "opinion based on fact," "public /important interest"; and I suspect her being a "public figure" are all on my side. These attacks by the manager, inhibiting people from saying anything negative about her, have gone on too long. I am not taking it. It has been too costly to the HOA and to members. I am at ease with quietly throwing down the gauntlet to her ridiculous demands and saying simply, "No." I will continue to comply with my fiduciary duty. I will continue to state my constructive concerns about HOA operations. If the manager's name comes up, that's fact and the way it is. " (I restrain myself from saying to the manager, "Sue me. Please for goodness sake, sue me. I want your improprieties to be out in the open at last, on public record, for all your future prospective employers to see. I want every judge in the county to know your attorney's name and your name.")

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By AugustinD on 11/11/2017 7:31 AM
To re-phrase somewhat: Generally speaking, is a HOA manager above criticism, that is provably truthful or legitimate opinion, by the Board or by HOA Members? I think most HOA boards cannot be the day-to-day decision-makers of a HOA, especially given the relative infrequency with which Board meet. Many decisions are made by the manager. I think this is why she or he is paid money and the Board is not.

Nationwide, City Managers have been declared "public figures" or "public officials." They are not elected. Their immediate boss is typically the City Council. The City Manager is typically paid a factor several times more than City Council Members. Given that courts have ruled HOAs to be quasi-governmental entities, with significant control over people's living conditions, it seems to me that a HOA manager may be a public figure.

Janet, you see what I am getting at. I wonder if the Colorado court you cited did apply the public figure standard. Cases on HOA Law and defamation do seem to be clear that directors are public figures. From the comments listed at the linked article you provided, and from a lot of study of defamation law and decisions re defamation, I think the only libelous statement in the Colorado case is the one saying the board had its fingers in the cash register (if this was in fact false). If you have a link to the Colorado Supreme Court's decision, I would be interested in reading it.

I do note that courts and the media are quoting the following line quite a lot: "Defining public figures is much like trying to nail a jellyfish to the wall," Sewell v. Eubanks, 181 Ga. App. 545 (352 SE2d 802) (1987)."

This is not an academic matter where I am. I am aware that an attorney may be consulted. For now, I am asking for people's impressions of whether a HOA Manager in a self-managed HOA may be a public figure, on grounds that she or he has, within the HOA, "persuasive power and influence" or achieved "pervasive fame or notoriety" within the HOA. Because this is the standard a court will use.

I have a couple of HOA court decisions pointing in this direction.

You will not find a link to any CO Supreme Court decision ... On June 22, 2009, the Colorado Supreme Court declined to hear Jackson's final appeal.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JanetB2 on 11/11/2017 5:52 PM

You will not find a link to any CO Supreme Court decision ... On June 22, 2009, the Colorado Supreme Court declined to hear Jackson's final appeal.

The appellate court opinion is formally "unpublished" under Colorado law but may be had via an online request, following an agreement not to publish. I think the explanation is a little relevant:

"Colorado Appellate Rule 35(e) provides that a case should be published when the opinion: (1) lays down a new rule of law, alters or modifies an existing rule, or applies an established rule to novel facts; (2) involves a legal issue of continuing public interest; (3) directs attention to the shortcomings of existing common law or statutes; or (4) resolves an apparent conflict of authority."
-- From https://www.courts.state.co.us/Courts/Court_Of_Appeals/Protocols.cfm

Wiki elaborates on why many appellate opinions are not published: Lack of precedential value. See https://en.wikipedia.org/wiki/Non-publication_of_legal_opinions_in_the_United_States

I suppose the appellate court felt the lower court got some of the law right and some of the law wrong. E.g. the lower court apparently issued a blanket prohibition on future publications by the HOA member. I have seen similar lower court rulings, with prohibition on unknown future speech activity, thrown out where I am too.

I went ahead and asked for a copy of the opinion using the online form at https://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion_Request.cfm . I had to agree not to publish it, nor, for all intents and purposes, cite it. If it really does not create any new law, this makes sense. I would like to see in what writings the appellate court agreed the plaintiff had defamed or harassed the board members.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JanetB2 on 11/10/2017 7:58 PM
Here is a link you might find interesting: https://www.hoaleader.com/public/328.cfm

I just received a copy of the Colorado Court of Appeals opinion for the suit the linked article above cites. The suit is: Jackson v. B Lazy M Ranch Owners Association, Colorado Court of Appeals # 07CA2379 . It is not publishable and may not be cited in legal briefs et cetera. As to the defamation claims, the hoaleader.com article is incorrect. The appeals court rejected the lower courts reasoning regarding the defamation claims. The Colorado Court of Appeals sent the defamation claim back to the lower court for further consideration of whether defamation had occurred. The appeals court gave the usual reasons for rejecting the claims of defamation, such as the opinions of Member Jackson about the HOA were protected free speech. The facts so contradict what hoaleader.com published that it makes me suspicious of what entity underwrites hoaleader.com. I would say that hoaleader.com is attempting to chill HOA members' right to give constructive criticism about their HOA.

CarlJ2 (Texas)
Posts: 194

Posted:

The PMC is the enforcement arm of the board so I'd think "Persuasive Power and influence" apply.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By CarlJ2 on 11/16/2017 1:44 PM
The PMC is the enforcement arm of the board so I'd think "Persuasive Power and influence" apply.

I think that's succinct and well-put, Carl. Thank you.

SheliaH (Indiana)
Posts: 6,964

Posted:

Quote:

Posted By AugustinD on 11/11/2017 3:28 PM

Posted By GenoS on 11/11/2017 3:11 PM
I think if I had all my ducks lined up I'd rely on the truth being an absolute defense. And go for it.

Good grief, if your manager is behaving like this, what in the hell is wrong with the rest of your board???? Never mind the slander and libel question - how come you're the only one who seems to be willing to check this lady and remind her that she works for the ASSOCIATIOM and is not a Board member, so stay in your damn lane????

I seem to recall from previous posts that your association had issues with the board and some had to be voted out and you got in. That's great, but if the rest of them aren't willing to deal with their employee (because that's what she is in the long run), it may be time for your neighbors to once again dump this bunch (not you!) and get some people with a spine, so they can give this lady the heave ho.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By SheliaH on 11/18/2017 12:46 PM

Good grief, if your manager is behaving like this, what in the hell is wrong with the rest of your board???? Never mind the slander and libel question - how come you're the only one who seems to be willing to check this lady and remind her that she works for the ASSOCIATIOM and is not a Board member, so stay in your damn lane????

I seem to recall from previous posts that your association had issues with the board and some had to be voted out and you got in. That's great, but if the rest of them aren't willing to deal with their employee (because that's what she is in the long run), it may be time for your neighbors to once again dump this bunch (not you!) and get some people with a spine, so they can give this lady the heave ho.

Hi Shelia, I sure appreciate your remarks and the reality check. A group of us, tired of this manager telling them not to even think of criticizing her, has regrouped and is in talks with a few people to run for the board. As Timb4, others, and I think maybe you have pointed out, sometimes it takes a few years.

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