hearings

Started by BobT2 • 6 replies • 1133 views

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BobT2 (California)
Posts: 43

Posted:

Our Rules allow for fines. So when a member who is also a Board director is called to a heaing on a possible fine, are they allowed to vote? Our ccrs and bylaws do not address they only refer to following Roberts Rule of order. Roberts says they can vote, maybe they should not, but can. Has anyone had this happen to them?
Bob

BrianB (California)
Posts: 2,820

Posted:

IMO, no. they cannot vote for or against themselves.

SusanW1 (Michigan)
Posts: 5,202

Posted:

I don't understand what a "hearing on a possible fine" means.

Either the Board is authorized to fine or not.

Either the offense is fine-able or not.

There doesn't need to be a hearing.

It's a very objective process.

Hearings are generally for behavior, where charges are being brought against a member, not for fining issues.

Please explain more.

BobT2 (California)
Posts: 43

Posted:

Our Board fines someone for something $100.00 month.
Member feels they are not violating
After 9 months and $900.00 in fines member called back to another hearing on the same issue.
Is the board required to call the member back to another hearing on the same issue if they want to continue the fine but make it a $250.00/ month fine? Cant they just increase the fine? If the board says we have to vote on to up the fine why can't the board member be there? I dont think they need to revote to increase the fine when proper notice is given just up the fine as it is stated in the fine schedule. Im confused. Bob

MaryA1 (Arizona)
Posts: 7,043

Posted:

Bob,

Doesn't CA have state law addressing fines? In AZ, HOA state law states: "after notice and an opportunity to be heard, the board of directors may impose reasonable monetary penalties on members for violations of the declaration,bylaws and rules of the associaiton." In the violation notice the amount of the fine should be stated. Therefore, if the board is increasing the amount of the fine, yes, the member should have the right to have a hearing on the new fine.

If the member in violation is a board member, then I do not think that person should be voting on whether or not to increase his fine. That, IMO, is a conflict of interest. However, if the board chooses to allow him to vote, after stating his conflict, only then should he be allowed to do so. I certainly hope the other board members will not be intimidated in casting their votes on the matter! Frankly, I think it's terrible for a board member, especially the Pres, to be in violation of the docs for a period of 9 mos, to the tune of $900! IMO, this should be cause for immediate removal from the board!

GlenL (Ohio)
Posts: 5,491

Posted:

Bob CA law does indeed have provisions for hearing after a fine is imposed however if the owner does not appear for the hearing the fine becomes enforceable by default.

BTW even though you feel in the right in your battle over truck parking and you have the absolute right to fight for what you think is fair and for equal enforcement. But be aware large fines have been upheld in CA courts:

Results for $227,000 fine in CA The court found in the favor of XXXX XXXXX, holding that “XXXX XXXXX did not abuse its discretion in finding continuing violations … or in imposing monetary penalties against the [owner] … [the] Board acted upon reasonable investigation, in good faith, with regard to the best interests of the Association, and not in an arbitrary manner and its actions are entitled to deference …” The court further ruled that $227,000 was not an unreasonable monetary penalty because the owner’s own actions contributed to the amount of the penalty as the owner could have prevented the imposition of the fines by simply coming into compliance with the association’s rules.

Studies show that 5 out of 4 people have problems with fractions

SusanW1 (Michigan)
Posts: 5,202

Posted:

Bob - your original question was "can't they just increase the fine?"

The real question is: Can a Board increase a fine when it is already stated (in bylaws, CCRs, rules and regulations, where?) that the rate is $100 per month. Somewhere in your documents, it should tell who and when fines can be levied and how the amount is determined. Your board may not even have the right to increase fines on its own.

Another question is about Board members voting on issues that concern them. ALL board members vote on ALL issues, except if they take themselves out (for having a pecuinary interest/benefit). You can suggest that he abstain, but don't count on it.

In the meantime, this Board member is willing to wait things out until a "ruling" comes down thru the courts or thru a real estate lawyer determinging what your CCRs mean - and putting it in writing. Because all this is undecided, and this person is neither guilty or innocent, he is sitting on the board in "limbo"

It seems this member (a board member, at that!!) is ignoring any ruling, and ignores the fine. Increasing it probably won't make a difference, anyway.

Get your ruling - and then get him off the board.

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