Megan's Law is a law named after a seven-year-old girl who was raped and murdered by a child molester who had moved across the street from her family. The crime triggered the passage of Megan's laws in several of states including California to provide the public with information on the location of sex offenders.

California now has a database of registered sex offenders available for public viewing on the internet. Searches can be done by an offender's name, or by city, zip code or within a predetermined radius of a selected park, address, or school. Once an offender has been located, his or her picture is displayed, along with their present address, offenses, known aliases and any distinguishing scars, marks and tattoos. The information is available at meganslaw.ca.gov.

There are several levels of sex offenders. The classification depends on the crime committed, the age of the parties involved, and the person's propensity to commit additional offenses. Following is a summary of California's classification system:

Tier I Sex Offenses. Public indecency, voyeurism, possession of child pornography, and sexual contact without consent.

Tier II Sex Offenses. Trafficking of minors for the purposes of sexual activity; sexual contact or acts with persons between the ages of 12-15; sexual offenses where the offender had a position of authority over the victim such as a parent, guardian, babysitter or teacher; and the production or distribution of pornography that includes minors.

Tier III Sex Offenses. Sex acts where force was used; sex acts where the victim was rendered unconscious or impaired through the use of drugs or alcohol; and sexual acts where the victim was under the age of 12.

Although board members are fiduciaries, there does not appear to be a duty by directors to disclose the presence of registered sex offenders in the association. Regarding notice to the membership, boards have several options, depending on the circumstances and the degree of risk they are willing to assume.

1. Make No Disclosure. Boards can elect not to mention the presence of a registered sex offender. This avoids any potential liability that may arise from improper use of the information, improper notification, or mistaken identification. However, if a child in the association is molested by that person, the parties involved might sue the association for failing to notify the membership of the potential danger.
2. Contact the Police Department. Directors could contact the local law enforcement agency and ask it to give notice to the membership. The advantage is the association's avoidance of potential liability for giving improper notice. The disadvantage is the agency may not willing to give notice.
3. Disclose Identity and Address. This option should NOT be exercised without advice of counsel. It may place the board in violation of the law and create the potential for defamation since the information on the state's website may not be accurate.
4. Direct Members to the Website. Boards can include a notice in the association's newsletter or on their website about the Megan's Law website. The board would make no comment about a registered offender living in the association; it would simply encourage members to examine the website.

The board's action should depend on the seriousness of the threat. Boards should seek counsel before taking any action, except for #4.

Starting January 1, 2020, homeowner associations can no longer prohibit registered sex offenders or felons from serving on their boards of directors unless they affect the association's ability to obtain a fidelity bond. This includes felons who have been convicted of rape and/or murder.

Associations that desire to amend their CC&Rs to prohibit high risk sex offenders from living in the development must take into consideration California's Penal Code §290.46 which makes it clear that Megan's Law is not intended to punish registered sex offenders and specifically prohibits using their status to harass or commit any crime against them. Specifically, a person's status as a registered sex offender cannot be used against them with regard to 1) Health insurance, 2) Insurance, 3) Loans, 4) Credit, 5) Employment, 6) Education, Scholarships, or fellowships, 7) Housing,or accommodations, 8) Benefits, privileges, or services provided by any business establishment.

A violation can make a person or the association liable for damages, attorney's fees and fines up to $25,000.

Regardless of the option chosen above (in consultation with legal counsel), boards should consider putting a standard notice in their newsletters and website. The notice should be generic and state something similar to the following: "For information on registered sex offenders, visit meganslaw.ca.gov.