Should these owners be identified?

Here's what Davis-Stirling says: https://www.davis-stirling.com/HOME/D/Delinquency-Reports

Delinquencies are discussed in both open and closed sessions, but where it happens depends on the nature of the info being discussed. I know others who live in open meeting states have said that they get around the privacy issues by referring to the owners by lot number or unit number, not by name. Which is what it sounds like is happening here.

FWIW, we have no issue with providing owners with copies of the general aging report so that they can see how much is outstanding. But any discussion of individual situations goes into executive session. We're a small enough community that even if we didn't mention someone by name, other owners could figure out who we're talking about from the details. We may be overly cautious, though - liens are public info, so anyone who wants to know who is significantly in arrears can go to the county recorder's website where names and addresses are available.

To me this is close enough to a disciplinary hearing (or discussion right after the hearing) that it should be treated as such. Per statute, the board is supposed to ask the owner if he/she wants this hearing held in open or close session. See https://www.davis-stirling.com/HOME/H/Hearings-in-Executive-Session, including the link to the statute section.

Debt collections law might play a role here as well: The owners owe (or owed) money to the HOA. To what extent can the HOA release this fact to the world?

This is a foolish, lowbrow, likely lawbreaking move by this board.

And no, for this decision, of course it does not matter what hostility an owner has exhibited to the board. These (the owner's owing money/late fees; and the owner's being hostile to the board) are two separate issues.

4935 a allow executive session for assessments or only if the member asks for it. A late fee isn't discipline, it's assessments. Even if it were discipline, it would only be exec session if requested by member.

Cathy, I think you know already but just pointing out that Davis-Stirling.com is just a law firm's web site but the Davis-Stirling Act is the actual law at CA Civil Code sections 4000-6150. The law firm's web site is very good but sometimes they leave things out that work in favor of homeowners.

Thanks, Terri, but the agenda is with every owner, so too late for anyone to take it off the printed agenda. Since the Board meeting is Tuesday it's also too late for the Board to move the two items to executive session, which also has a posted agenda for Tuesday, since 2-days notice is required.

I'm thinking that the Board president should move those two agenda items to the Board's next executive session. I'd suggest the president ask the Board at the beginning of the meeting to consent to postponing the New Business items J & K to the next scheduled executive session.

A late fee is indeed a penalty or discipline that is meant to deter owners from paying their assessments late. The executive session would not be about assessments but about late fees.

At the meeting before it starts someone could move that agenda item be postponed until members have opted for a closed or open session.

Civil Code § 4935. Executive Session Meetings.

(a) The board may adjourn to, or meet solely in, executive session to consider litigation, matters relating to the formation of contracts with third parties, member discipline, personnel matters, or to meet with a member, upon the member’s request, regarding the member’s payment of assessments, as specified in Section 5665.

Per 4935, the Board has the legal right to hold this discussion in executive session, either because it is a disciplinary matter or because it regards the payment of assessments.

A penalty that is "automatic" can still be discipline, afaic. The late fee is saying, "Bad owner. The HOA is punishing you for being late on your assessments."

Regardless, the issue also concerns payment of assessments.

Unless you have a citation to a section of the D-S Act that defines "discipline," the above is strictly your opinion.

Toss this into the discussion:

Civil Code § 5215. Redacting Information.

(a) Except as provided in subdivision (b), the association may withhold or redact information from the association records if any of the following are true:
.
.
.
5) The information contains any of the following:
.
.
.
(B) Records of disciplinary actions, collection activities, or payment plans of members other than the member requesting the records.

This site, and its links, say otherwise: https://www.davis-stirling.com/HOME/H/HOA-Fair-Debt-Collection-Practices. See especially the link to the 1997 U.S. District Court decision (southern district of California).

You changed your position, adding the word "licensed." Furthermore, it's simply irrelevant. If you read the link I provided, you would see whether a HOA is a licensed debt collector or not, HOAs are still subject to the FDCPA.

More from your Tinnelly friends in 2020:
https://hoalaw.tinnellylaw.com/sb-908-signed-debt-collection-licensing-act/

Oooh, an ad feminam. This is the final confirmation that you have no citation to support you claims.

In my first post to this thread, I wrote:
I stand by this.

5855 "Disciplinary measures" doesn't include the imposition of late fees for the purpose of notice, hearing, etc. but 5725 describes a monetary penalty for late payments as a "disciplinary measure."

Aa I wrote way a move: "I'm thinking that the Board president should move those two agenda items to the Board's next executive session. I'd suggest the president ask the Board at the beginning of the meeting to consent to postponing the New Business items J & K to the next scheduled executive session."

And that's exactly what I'll suggest to the president today. I won't write to the entire Board or PM. I'll let the president deal with the PM.

I'm done with this topic Terri, which for me was about protecting the privacy of some owners. But if you'll poke around D-S.com a little more you'll see that owners may request that their executive session matter be on an open meeting agenda, but the Board does not have to a comply.

The open discussion of the fines is a good thing because the embarrassment and stigma from the community knowing who's breaking the rules will humble them.

It is called Public Shaming and while I agree with you most lawyers recommend against such practice.

We always referred to account numbers when discussing delinquencies- in open meetings, I've never seen any incident where identifying delinquent homeowners led in them making the account current. When it comes up on this website, I've asked peopke to give specific examples- and no one ever has.

If you want to discuss in open board meeting in this way, go ahead, although I'm inclined to ask "did account #XOXO provide verification in writing that the assessment was paid on or before the due date? Our policy states the property manager must have it by close of business on the 5th of the month. Postmarks don't count, neither do weekends ir holidays because the busihess office is closed. If there's no new information the homeowner has presented to make the argument, I move that the late fee stands. If he ir she wants to schedule an appeals hearing, have them contact the property manager. By the way, all this is in the collection policy posted on the community website."

Now, if the homeowners are there and want to fess up in front of everyone, go ahead. Personally I'd rather not take a dump in public when it will make me look ridiculous, but that's just me

Then I'd remind everyone that we do not disclose the identity of delinquent homeowners due to the fair debt collection act. If people really want to know, they can offer to pay the delinquent amount- after the check clears, I'd tell that homeowner and the formerly delinquent homeowner who bought the account current. If they want to discuss the matter after that, have fun - and good luck getting your money bsck.

Shelia brings up the main reasons our lawyers said that these discussions need to be confidential. One, people who are publicly shamed generally double down - not only is the board their enemy, now the rest of the community is as well. Do you think they'll care about stiffing their neighbors when the neighbors are judging them? Two, potential violations of the Fair Debt Collection laws may make the debt uncollectible, which is the last thing you want.

I also think that other owners who are attending the meeting will have different opinions on what's happening. Some may be all in favor, but the more empathetic ones will be uncomfortable - because they know that there but for the grace of God and health insurance go they.

As long as the board can satisfy open meeting requirements, I don't believe that shaming people accomplishes any good. I understand the impulse - but it's divisive and actually harms the community.

Cathy

The reason most lawyers advise against public shaming is if one (HOA) doing the shaming is wrong it opens them up to legal liabilities.

If you haven't already done so, I think a letter to the board on this matter is appropriate because they need to have a word with the property manager about disclosure (and maybe dome other issues). Especially if there's a chance the property manager is wrong (it can and does happen).

Having the unit number is the same as yelling out the owners name. It may be true everyone doesn't know everyone in the building, but if you have a unit number, it may not take long to figure out. Whoever screwed this up owes the homeowners an apology.

Since the agenda is out, could an updated one be sent to everyone stating that item was listed in error and the manager and board are working with the owners in scheduling an executive session? I would hope it would be OK as long as you met the advance notice requirements

To be clear, the sections you are citing seem to say "may" rather than "must."

So this appears to be a judgement call, rather than a legal requirement. Am I interpreting this correctly?

Section 5215(a) does not "seem" to say "may." It does say "may."
I was tossing this into the mix, nothing more, to say the board, upon receiving a records request, is not required to provide records of disciplinary action. I agree that, when a board receives a records request from an owner, this is a judgment call.

I believe the issue here is that the Board provided what I consider disciplinary information to all owners without any owner having made any records request. This is despite the requirement that the board offer an executive session disciplinary hearing to the accused owner.

Is there some other point you are trying to make?

I'm curious too, David?? I do know that some DE statutes about HOAs draw from Calif.'s Davis-Stirling Act. Is the reason for your question?

My take is--in the context of records inspctions/requests--that though many records must be provided to owners upon proper request in CA, the Assoc. is not required to provide certain records.

My own HOA's Bylaws (ca. 2022) state that any executive session decisions are confidential until/unless the Board votes to release them to the membership. So there is no "judgement" involved. Our Bylaws go so far as to state that a Board may remove and declare vacant the seat of a director who violates the confidentiality of executive session:

"Unless previously authorized in writing by a majority of the Board, [the director] fails to keep confidential all confidential Board information, including but not limited to discussions and information received during Executive Session Board Meetings and information which is subject to attorney-client privilege and which privilege vests in the Association."

Nice citation, Terri