Strategies for Conducting an Efficient Violation Hearing
Overseeing and participating in violation hearings is one of the most challenging aspects of serving on a board of directors. It serves as an opportunity for the owner accused of a violation to “face” his or her accusers. Often the subject matter of the hearing involves personal and sometimes contentious facts. Before the onset of COVID-19, the setting for a violation hearing usually occurred in a conference room inside the association, a local library, nearby police station, or some other public facility. The board members sit alongside one another at the front of the room usually behind a long conference table facing outward. The accused typically sits in a chair facing the entire board. The layout itself can feel more like a parole hearing than an association hearing and can be intimidating for both the accused and the board.
It is rare for board members to have served in a prosecutorial or judicial role of any kind. This inexperience may give rise to disorganized, contentious, and stressful hearings. However, methods and strategies exist that, if properly deployed, increase the likelihood for holding efficient and respectful violation hearings.
Preparation is Key
Of everything I have learned throughout my career as a lawyer, the most valuable lesson has been that preparation is key. Being the most prepared person in the room is often more important than the strength of one's case and the lawyer’s talent. The same is true for violation hearings. If the Board intends on conducting a violation hearing without the aid of a lawyer, it must take time to prepare. The individual board member that will lead the hearing (often the board president) must understand the specific charges levied against the accused. That individual must also be deeply familiar with the facts and circumstances that give rise to the violation. He or she must take time to develop questions he/she wishes to ask the accused and have a deep understanding of the rule or covenant that the accused is charged with violating.
Hearing Ground Rules
The second most important aspect to conduct an efficient violation hearing is reviewing the ground rules with all participants at the beginning of the meeting. The board member in charge should take a few minutes to verbalize the rules with the accused and any witnesses present. It is helpful to discuss the procedural order of the hearing such as who will speak first, how long they will be given to speak, and what types of information they may share with the participants. Addressing proper decorum is also important. It is beneficial to inform participants that basic levels of respect and courtesy are expected of everyone. For example, interruptions, name calling, and derogatory terms will not be tolerated. Violations of decorum will be grounds for immediately terminating the hearing.
Board Member Strength and Unity
Another very important aspect of conducting an efficient hearing is for board members to support one another. Sometimes board members disagree about the enforcement of a specific violation against an owner. It is acceptable, and even encouraged, for board members to disagree about certain association issues. However, these disagreements must remain confidential and should only be shared in private sessions among the board members. The easiest way to disrupt a violation hearing is for a board member to express his or her disagreement with the board about the alleged violation during the hearing itself. This sometimes occurs when the dissenting board member asks questions of his or her fellow board members in the middle of the hearing. In more egregious cases, it occurs when a dissenting board member openly voices his disapproval of the hearing. Dissent of this nature divides the board, empowers the accused, and jeopardizes the effectiveness of the hearing.
The personality type of the individual in charge of the hearing is of critical importance. The president of the board may seem like the obvious choice to conduct the hearing. However, if the president has a more meager and reserved personality, a separate board member may be the better choice. Ideally, the individual that leads the violation hearing should be comfortable with public speaking and confrontation, be organized, have a strong presence, be a skilled listener, and be patient. One of the easiest ways to disrupt a violation hearing is to appoint an individual with a mild personality to run the hearing. Without clear leadership, accused owners and residents feel empowered to take control of the hearing.
Finally, it is important for the board to designate at least one member to oversee and lead the hearing. Failing to identify a member in charge causes board confusion, represents a disorganized process and empowers the accused to disrupt the hearing method.
Consider Association Counsel
Not all violation hearings require the participation of association counsel. The Board can and should use its discretion to make this determination. That said, most violation hearings should involve association counsel for a few reasons. First, having the association’s attorney present sends a clear message to the accused that the board takes a serious view of violations. Second, attorneys tend to be organized, are comfortable with public speaking and confrontation, and are skilled listeners (at least the good ones are). This combination of skill serves an association well as it helps establish order and formality for the hearing process. Third, it increases the effectiveness of advice provided by counsel following the hearing. Association counsel had the opportunity to personally observe the accused, the witnesses, and the evidence presented. This permits counsel to develop an informed opinion of the character and creditworthiness of the accused based upon firsthand observations.
Conducting Violation Hearings During the Coronavirus Era
These days most boards conduct violation hearings remotely using Zoom or another remote conferencing platform. In the virtual setting arena, the above guidelines are even more important to closely follow. Without the physical presence of participants sitting inside the same room, societal rules of common courtesy and respect are more quickly forgotten. Interruptions, outbursts, and other disruptive behavior more likely rear its ugly head. As such, it is critically important for boards to establish those ground rules, seize control of the hearing at its outset, and closely stick to its predetermined outline.
Good Luck and Happy Hearings!
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