constitutionBoards of directors of community associations (and, unfortunately, even the attorneys advising them) will sometimes mistakenly believe that co-owners are not entitled to certain Constitutional rights of due process with respect to disciplinary hearings. They might warn a co-owner not to bring their attorney to a hearing or not allow an owner to cross-examine witnesses, believing these measures will minimize conflict. They also may believe that since a hearing does not take place in a court of law, there is nothing wrong with restricting how co-owners can defend themselves in a hearing, so long as the process does not violate the governing documents. However, boards that operate in this way are in for a rude awakening that they have been trampling on rights of due process guaranteed by the 5th and 14th amendments to the U.S. Constitution. The phrase is similar in both, essentially:

“No person shall… be deprived of life, liberty, or property, without due process of law…”

“But wait,” says Joe Director, “we aren’t the government, we’re just a tiny community association trying to keep things orderly in our community. And the 14th amendment specifically refers to the ‘State’ taking these actions against a person.” Well, sorry Joe, but U.S. appellate courts have long recognized the quasi-governmental nature of community associations and have further specifically ruled that Constitutional rights of procedural due process apply to disciplinary hearings.

So, what exactly does “procedural due process” mean? In 1975, Judge Henry Friendly’s article Some Kind of Hearing was published in the University of Pennsylvania Law Review, which remains the modern legal standard for procedural due process. It comprises the following:

1. An unbiased tribunal.
2. Notice of the proposed action and the grounds asserted for it.
3. Opportunity to present reasons why the proposed action should not be taken.
4. The right to present evidence, including the right to call witnesses.
5. The right to know opposing evidence.
6. The right to cross-examine adverse witnesses.
7. A decision based exclusively on the evidence presented.
8. Opportunity to be represented by counsel.
9. Requirement that the tribunal prepare a record of the evidence presented.
10. Requirement that the tribunal prepare written findings of fact and reasons for its decision.

With regard to #1 above, it’s interesting to consider that boards often find themselves in the position of being both prosecutor and jury in a hearing, so it may not be reasonable to expect a completely neutral tribunal will be available. However, if any member of the board may have a personal interest in the outcome of the hearing, for example, if the board member complained of a nuisance affecting them, that board member must recuse himself or herself from the board’s deliberations and from the final decision. And in any case, board members must strive to examine the evidence from an unbiased point of view and render the final decision accordingly.

Be sure to conduct your disciplinary hearings in accordance with your governing documents while observing your co-owners’ Constitutional rights, and you will likely be in a much more defensible position if the board’s decision is challenged in court. Your experienced community association lawyer should be called upon to assist you in this process.

By Mark Petrie, Legal Assistant, The Meisner Law Group