guest blog by Robert E. Frank, USAF (Ret.)
founder, HomeOwnersCoalition.Org & veterans advocate
John Tarlton likes the idea of due process, but seems to think something like 3.4 would be too costly for small organizations. It says: “4. The parties may present witnesses and all witnesses shall be subject to cross-examination by the opposing party and may not, without the consent of all the parties, be present when other witnesses are testifying except for the alleged violator who may be present for the entire hearing and may testify if he or she so chooses.”
Really?? Too costly to ensure fair challenges and cross examination to possibly false statements by someone in the hearing process (including directors, CAMs, etc.) who wish to do possible harm (minor or extreme) to a member? While false statements might be innocently made in board hearings, under no circumstances should they be allowed to stand. Our nation allows rigorous challenges against false witnesses, and justice demands nothing less.
I believe competent association managers and/or volunteer directors can figure out low-cost ways to protect the vital interests of both members and the association without violating something as basic as the “right” to challenge false witnesses and expose “possible criminal violations” by false hearing statements. Regardless, if the rule is worth enforcing, and the member violation is worth charging, the board’s cost of defending the accuracy and appropriateness of the charge is an unavoidable cost.
I say possible criminal violations because the outcome of most board hearings is cash coming out of the pockets of members. Any submitted/accepted false witness statements by anyone in the hearing process could be grounds for various types of common criminal statute violations including theft, extortion, etc.
Having personally seen false claims being accepted by boards against innocent members that resulted in arbitrary/unfair hard cash penalties and sometimes extreme impacts against out-of-favor members, I cannot imagine why industry professionals would tolerate policies for such to be created or allowed to exist in any developer-sponsored CC&Rs. Protection of all due process rights could/should be embedded in every CC&R.
Judgments by HOA/Condo Boards must ALWAYS be seen as done fairly, justly and above board. We professionals must demand nothing less than EQUAL justice for ALL members–not just the favored few.
And, IMO state legislatures are derelict in their duties if they allow CC&Rs to contain provisions where the basic due process protections for all owners and other occupants are not guaranteed.
Individual rights MUST prevail in this nation–EVEN in HOAs and Condos. The majority cannot be allowed to overrule such individual rights to protect property and freedom. It is embarrassing and deeply troubling when so many of the professionals in this HOA/Condo business are able to look the other way and ignore this major flaw in our governance practices.
Since the costs of operations are borne by, and benefit, all members, failing to protect all due process rights for all individuals under CC&R governance rules is indefensible–in my view.
This situation should remind us of Patrick Henry’s passionate demand for liberty or death…. Our personal property rights have been “taken” and we have no choice but to reclaim them for our survivors in the future.