Disciplinary Hearings - Due Process

Due process is defined as fairness when it comes to imposing penalties including fines on members of an association. Associations cannot levy fines and suspend privileges for rules violations (including continuing violations) unless due process has been followed. Elements of due process can be found in the Davis - Stirling Act and the California Corporations Code, while others are found in case law.

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 an 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 its 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, association boards should:

  • Adopt and publish Operating Rules also known as Rules & Regulations as needed.
  • Be aware that the procedure for imposing penalties or suspending membership privileges must be in the governing documents, and must be sent annually to all members.
  • Be aware that unless the association's governing documents provide for a longer notice period, the person accused of violating the rules must be given 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. If the governing documents specify a longer notice period, the longer period applies. 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 a 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 an 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 must 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 should always be held in executive session.
  • The board should make "findings" to support the board's decision regarding the alleged violation. For example, the board records in its executive session minutes:

Notwithstanding that Mr. Jones denied the allegations, seven members of the association witnessed that he permitted his dog to run through the common area unleashed on four separate dates. The board voted to impose a fine of $250 against Mr. Jones.

The example findings demonstrate substantive due process by the association and that the fine is reasonably and rationally related to the operations of the association.

  • Name the witnesses. Unless the association's governing documents provide for a shorter notice period, notice of the board's decision must 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.

Associations should consider amending their CC&Rs and Operating Rules if they are inconsistent with explanation above.