Procedure to Impose Monetary Penalty or Charge
For _______________________ Association
When the board is to meet to consider or impose discipline upon a member, or to impose a monetary charge as a means of reimbursing the association for costs incurred by the association in the repair of damage to common area and facilities caused by a member or the member's guest or tenant, the board shall notify the member in writing, by either personal delivery or individual delivery at least 10 days prior to the meeting.
The notification shall contain, at a minimum, the date, time, and place of the meeting, the nature of the alleged violation for which a member may be disciplined or the nature of the damage to the common area and facilities for which a monetary charge may be imposed, and a statement that the member has a right to attend and may address the board at the meeting. The board shall meet in executive session if requested by the member.
If the board imposes discipline on a member or imposes a monetary charge on the member for damage to the common area and facilities, the board shall provide the member a written notification of the decision, by either personal delivery or individual delivery within 15 days following the action.
Disciplinary Hearings - Due Process
Due process is defined as fairness when it comes to imposing penalties including fines on members of the association. The association will not levy a fine and or suspend privileges for rules violations (including continuing violations) unless due process has been followed.
There are two parts to due process:
- Substantive Due Process. This part of due process requires that decisions be reasonable and not arbitrary or capricious. The criteria for testing the reasonableness of an exercise of power by the association are (1) whether the reason is rationally related to the protection, preservation or proper operation of the property and the purposes of the association as set forth in the governing documents and (2) whether the power was exercised in a fair and nondiscriminatory manner.
- Procedural Due Process. This part of due process requires that procedures used for determining violations and imposing penalties are fair. Elements of procedural due process include: (1) giving the accused notice of the alleged violation; (2) providing a reasonable opportunity for the person accused to defend themselves; (3) knowing the identity of the accuser and any witnesses; and (4) giving the accused an opportunity to examine and refute the evidence.
In order to assure that due process is followed, the association:
- Has adopted and published Operating Rules also known as Rules & Regulations as needed.
- Understands that the procedure for imposing penalties or suspending membership privileges must be in the governing documents, and must be sent annually to all members.
- Gives written notice of the violation and scheduled hearing date by personal delivery or first - class mail, at least 10 days prior to the meeting at which monetary penalties are imposed. For suspension of privileges, the notice must be at least 15 days prior to the hearing. Notices must be reasonably calculated to provide actual notice to the member. The notice must contain the following:
- The date, time, and place of the hearing;
- The nature of the alleged violation for which the member may be disciplined; and;
- A statement that the member has a right to attend the hearing and present evidence in his or her defense.
There is no requirement that the association provide notice to a tenant of a violation hearing. If a member wants to notify his or her tenant, that is up the member to do so.
Disciplinary hearings shall incorporate the following:
- The accused has the right to know the identity of his or her accuser and must have an opportunity to examine and refute any evidence presented. This may include asking questions during the hearing. Members also have the right to submit their defense in writing rather than make an appearance before the board.
- Members do not have a "right" to have an attorney represent them in disciplinary hearings. However, depending on the hearing model adopted by an association, an attorney could be present.
- Disciplinary hearings shall be held in executive session.
- The board shall make "findings" to support the board's decision regarding the alleged violation.
Notice of the board's decision shall be provided by personal delivery or first - class mail within 15 days following the board's decision. The written decision must include the board's findings, as set forth in the minutes.