Members’ Bill of Rights:
Below is the latest draft of my proposed Members’ Bill of Rights, a document that
should actually not be needed . . . but is. Badly! In a perfect world, we would treat
each other with courtesy, kindness, respect. But we don’t, and that’s too bad! This
peculiar idea of HOA living has forced us to become our own government, so we
create all these boards and suddenly we are “politicians,” who are expected to
perform jobs that most of us are uniquely incompetent at. Worse, we anoint some of
these well-meaning incompetents to become judges on disciplinary and traffic courts,
and there is where things go totally off the rails. Because it takes special qualities to
be a judge. It requires . . . well . . . judgment; discretion; modesty. Qualities that are
in short supply if you’ve ever witnessed one of our kangaroo court cases!
Currently, we convict members based solely on rumor/hearsay; our “judges” get
evidence the member may never see; our prosecutors have been caught lying to the
boards and falsifying hearing records; the same cohort acts as both witness and
prosecutors. (You can’t make these things up!)
Adopting the Bill of Rights will accomplish three things all at once: (1) It will
reassure the members that they have the same Constitutional protections everyone
living outside our gates take for granted; (2) It will act as a restraint on our
disciplinary “judges,” who know that their decisions will be subject to review by a
real judge; and (3) It will provide a cost-efficient procedure to members who feel that
their rights have been treated unfairly. Reduced to its bare essentials, the Bill of
Rights tells our members that they will be treated fairly, with dignity and respect.
Here, then, is the latest version:
* * * * *
Members’ Bill of Rights
1. The purpose of this Bill of Rights is to assure fairness at all levels of the
disciplinary process, by guaranteeing that Members and others accused of violations
(“Defendants”) be provided with information and evidence sufficient to enable them
to properly defend themselves.
2. Thus in any disciplinary proceeding, Defendants shall be entitled to not
less than 10 days’ advance written notice of all hearings, along with:
(a) a full description of the claim;
(b) the identity of all witnesses; and
(c) copies of all evidence …
… intended to be offered at the hearing to support the claim.
[Comment: This will not disclose confidential sources/information that is not offered
as evidence at the hearing.]
3. It is elemental that Members shall enjoy all traditional First Amendment
rights, including the right to complain to – and about – staff; and unless such conduct
constitutes harassment, it cannot be the basis for a violation.
4. No evidence not provided in accordance with the provisions of ¶2 shall
be used against the Defendant in support of that claim, or any similar claim that could
– or should – have been brought at the same time. (The purpose of this provision is
to assure fairness by preventing the claimant from having “two bites at the apple.”)
5. Consistent with traditional American legal principles, in the event of an
ambiguity in interpreting any rule or regulation, the benefit of the doubt shall be
resolved in the Defendant’s favor.
6. If an alleged violation is curable, the Defendant shall be given 10 days
to cure the same without the imposition of any penalty.
7. If a Defendant – within 5 days of receipt – wishes to dispute proffered
evidence (including photographs, videos. written reports and the like), they may do
so by delivering prompt written notice to [Insert appropriate VMS addressee], in
which event, such evidence shall only be presented by witness testimony based on
personal knowledge. For good cause shown, the 5-day deadline may be waived.
[Comment: Failure to dispute the proffered evidence (as provided in ¶7) will
constitute the Defendant’s admission that it is accurate; and therefore need not be
separately proven at any hearing.]
8. All disciplinary proceedings shall be visually recorded, and contested
testimony shall be given under oath. The recording shall be retained until the time for
all appeals shall have been exhausted, and for five years thereafter.
9. At all disciplinary hearings, Defendants shall have the right to (a) call
their own witnesses and (b) cross examine opposing witnesses.
10. Defendants shall have the right to be represented at all hearings by any
person of their choosing.
11. Evidence of prior violations shall not be introduced unless relevant to
the current prosecution.
12. The multiplier procedure that currently enables imposition of
confiscatory fines is rejected; and an amended fine schedule shall be adopted.
13. For the purpose of determining whether a violation has occurred, the
Executive Committee shall receive evidence only at the hearing and at the same time
and in the same manner as the Defendant.
14. After exhaustion of all rights of appeal within the jurisdiction of this
mutual, any decision adverse to a Defendant shall be appealable as of right to the
Orange County Superior Court, by filing a civil action for declaratory or equitable
relief within three months from the date of the Defendant’s receipt of the final
adverse decision.
15. In reviewing the decision being appealed, the Court shall accord no
deference to the underlying fact finding or decision, but shall apply normal standards
to all issues before it, as if ruling upon stipulated facts.
16. A Defendant who prevails in that civil action shall be entitled to
reasonable attorney’s fees and court costs. A prevailing association shall not recover
any costs, unless the court finds the action to be frivolous, unreasonable or without
foundation.
[Comment: Since the appeal would be limited to seeking relief from an adverse
disciplinary ruling, the Court will have no authority to impose a damage award. This
provision is not intended to alter any rights or affect any liabilities that might
otherwise exist, had this Bill of Rights never been adopted.]
17. A copy of this Bill of Rights shall be provided to every Defendant at the
time they are first haled before the Executive Committee for a disciplinary hearing.
Off The Cuff 