This comment was submitted by Michael Barto to Action Property Management on May 25, 2015
Comment
I/We comment on the proposed operating rule change as follows:
Above the minimum requirements for the IDR procedures to meet Civil Code §5910, specific language was added which discourages but does not preclude participation by legal council from either side. This was to encourage direct communication and expedite matters. In the same vain, I would like to suggest that you also add language to limit Board member's participation but not preclude only two Board members. Because over two Board members constitute a quorum, this over complicates the procedure and there is a perception or conclusion that outcome of the IDR process was already established. I would also add language that these meeting are open to members as long as either party does not object.
Our association Board consist of five members. Any meeting involving more than two Board members constitutes a quorum and therefore falls under the restrictions of "formal board meetings" or it will be perceived as a "Secret Meeting". To hold an IDR procedure as either an open or executive session places undue restriction on this procedure when a Board quorum is present. They are (1) an agenda must be posted and cannot be deviated, (2) procedural announcement restrictions with minimum two or 4 days notice and (3) formalized minutes must be taken and approved by members of the Board within 30days. If there are only two Board members participating in the IDR procedure, it does not have these restrictions and could provide better communication and more easily expedite matters.
Finally, there is a perception that if an IDR procedure is held in Executive Session it must fall under three very narrowly defined criteria. That is "Member Discipline", "Legal (privileged information)" or "Contracts". These are very narrowly defined by the Court and by design does allow the Board or the member to just put anything they want in "Executive Session" or it would be considered a "Secret Meeting". A member can have a dispute with the HOA that is not under member discipline. For example, the Board did not fund repairs of the owner's unit. This is a dispute and should not fall under "Member Discipline", "Legal" or "Contracts". But if the IDR procedure was held as a "closed meeting", and there is a quorum, it would be considered an Executive Session. The only way this with a quorum is the Board would be required to hold public a meeting. This may not be what the member or the Board wishes to do.
These suggestions are not significant and have little or no affect on the IDR procedure you are asking us to adopt. But added them would provide a perception that the Board is here to work with the members instead of fight with them. |
Original Proiposal (Draft)
RESOLUTION OF THE BOARD OF DIRECTORS OF
HARBOUR VISTA HOMEOWNERS ASSOCIATION (hereinafter "Association")
A California Nonprofit Mutual Benefit Corporation
Re: Internal Dispute Resolution Process
WHEREAS, Civil Code §5905 provides that a Community Association must provide an internal dispute resolution process ("IDR Process") that an Owner and Community Association may pursue as a fair, reasonable, and expeditious procedure for resolving a dispute;
WHEREAS, Civil Code §5905 sets forth the requirements for an IDR Process;
WHEREAS, the Board desires to adopt the IDR Process set forth below.
NOW, THEREFORE, BE IT RESOLVED that HarbourlVisfa Association adopts the following IDR Process that is in compliance with Civil Code §5905:
- Either party (Association or Owner) to a dispute involving their respective rights, duties or liabilities under the governing documents, the Davis-Stirling Common Interest Development Act and/or the nonprofit mutual benefit corporation law (collectively "Dispute") may request the following procedure:
- The party may request the other party. to meet and confer, in an,effort to resolve the Dispute. The request shall be in writing.
- An Owner may refuse an Association request to meet and confer. The Association may not refuse an Owner's request to meet and confer.
- Upon an Owner's request that the Association participate in an IDR Process, the Association has thirty (30) days to respond and must make a good faith attempt to hold the IDR Process within sixty (60) days of receipt of the written request.
- The Board shall designate two or more Board members to meet and confer with the Owner.The community manager will also attend the meeting. Either party, at its own cost, may ask other persons to attend if doing so is reasonably likely to aid in explaining and resolving the dispute. For example, if the dispute involves architectural issues, the Board may ask a member of the Architectural Committee to join the meeting.
- Although not precluded, attorney participation in the IDR Process is discouraged in order to maintain direct discussion between the parties of the Dispute and to maintain the goal of resolution through an expeditious process. To the extent Owner requires that his/her/its attorney attend the IDR Process, the Owner shall be required to give five (5) business days' notice to the Association so that the Association can ascertain if it desires its corporate counsel to also attend.
- The parties shall meet promptly at a mutually convenient time and place, explain their positions to each other and confer in good faith in an effort to resolve the Dispute.
- A resolution of the Dispute agreed to by the parties shall be memorialized in writing and signed by the parties, including the Board Designees on behalf of the Association.
- The Agreement reached by the Owner and the Board Designees binds the parties and is judicially enforceable if both the following conditions are satisfied:
- The Agreement is not in conflict with law or the governing documents of the Association;
and
- The Agreement is ratified by the Board of Directors within thirty (30) days of the date that the Agreement is executed by the Owner and the Board Designees
- If the Association initiates the "meet and confer" program and its dispute with the Owner, if left unresolved, is such that the Board could consider discipline against the Owner, the request to the Owner shall additionally indicate whether the Board intends to consider such discipline following the conclusion of the meeting and, if so, what discipline might be considered. Only meetings attended by at least a majority of the Board may result in disciplinary action.
- The Owner participating in the IDR Process shall not be charged a fee to participate in the IDR Process.
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