Enforcement Hearings: Trials, Tribunals, or What?
By: Dan Zimberoff
I’m often asked questions on how an association should handle an enforcement hearing, as there is very little statutory guidance relating to the process. Both Oregon and Washington have similar language in their condominium and homeowner association statutes relating to “written notice,” “opportunity to be heard,” and a previously provided “fine schedule.”
But the Oregon and Washington legislatures failed to elaborate upon what “an opportunity to be heard” actually means, what evidence can or should be evaluated, whether the owner has an opportunity to confront witnesses, whether the proceeding is closed or open to association members, and many other facets of the elementary due process requirement.
Without express statutory guidance, Oregon and Washington community associations are provided wide discretion on how to run the hearing. Remember, enforcement hearings are not trials; courtroom rules do not apply. Likewise, hearings should not be conducted as an open forum or debate. Common sense reasonableness should dictate the level of formality of the proceeding, admission and evaluation of evidence, and manner of deliberation. A board or committee has no duty to make inquiry; presumably, the inquiry into whether the violation occurred, or not, took place when the initial notice of fine was sent. Rather, the Board should only need to evaluate written or oral statements offered at the hearing as to why the violation did not occur (“it wasn’t me!”), or should not incur a penalty (“I did it, but I shouldn’t receive a fine because…”). Upon hearing all of the evidence, the board (or committee) should excuse all persons and deliberate in private. The standard of proof should be “preponderance of the evidence,” meaning more likely than not, rather than “beyond a reasonable doubt.”
Within a reasonable time period (days and not weeks or months), the association should send its ruling in writing to the owner with a statement whether the fine was upheld as an assessment, or whether it was dismissed. The decision should not include extraneous details-stick to the basic facts and final ruling in lieu of lengthy explanations. If the association has delegated the hearing to a committee, it is prudent to allow the owner an opportunity to appeal the ruling to the full board of directors.
It is important to note that the foregoing information assumes that an association’s governing documents are silent regarding due process protocols involving enforcement hearings. Of course, it is always wise to strictly follow your association’s governing documents, especially when fining owners, pursuing enforcement actions, or acting in any manner that requires “due process.”
If you have questions regarding enforcement actions, hearings or any other related matters, do not hesitate to call one of the attorneys at Barker Martin.