Here is a question asked in a comment to the “Brier Recap” Post on
February 28th:
Question: Does the Board need to wait for a resident to complain before
they can assess a fine to the resident?
Response: Rule IV.
Sections A. and C. Provide the Answer: The Board may (but did not in this case) initiate a Rule Enforcement Action but it is required to follow all the same procedures that apply when responding to a Resident Complaint. Exactly the same rules apply to the Board.
Section IV. A allows enforcement of Rule violations to be initiated by a
Resident or the Board (or the Residential or Commercial Committees). The rule reads as here:
A. Initiating
Enforcement of Rule Violations
1. A Unit
Owner or Resident may initiate an enforcement action by the Association by
delivering to any Board member or officer or the Property Manager a written
complaint as set forth in Part B. below.
2. The Board, or the Residential Committee and
the Commercial Committee on behalf of their respective Sections, may initiate
an action to enforce these Rules and Regulations.
Section IV. C adds that the process required of the Board is the same
whether the Board initiates the enforcement of the Rule violation or whether it
is initiated by a complaint. Here is
Section C:
C. Actions Upon Receipt of
a Complaint.
Upon receipt of a complaint or upon the initiation of an enforcement action by the Board,
the Residential Committee or the Commercial Committee, the Board or the applicable
committee may take any of the following actions:
1. Issuing a
written warning to the Unit Owner and/or Resident informing said person of the
Rule that was violated and requesting future compliance with the Rules and
Regulations; or
2. Issuing a
written request to the Unit Owner and/or Resident to abate an ongoing Rule
violation by a date certain or a fine might be imposed for non-compliance or an
abatement action will be commenced; or
3. Levying a
fine against the Unit Owner and/or Resident in an amount determined under the
Penalties Section below pursuant to Bylaw Article 2.2.2.1.(h) or 2.2.2.2.(i) if
warranted by the facts and circumstances and so informing the Unit Owner and/or
Resident in writing with a date by which the fine must be paid; or
4. Abating an
ongoing Rule violation or violation of the Bylaws pursuant to Bylaw Article
6.22 by giving written notice to the Unit Owner and/or Resident of the date
upon which such abatement action will be taken.
5. When
determining which of the foregoing actions is warranted, the Board or the
applicable Committee shall apply
the following standards:
a. The Board or applicable Committee or their
designee shall investigate the facts
regarding the alleged violation before administering the fine.
b. The investigation shall be fair and objective.
c. The investigation must produce substantial evidence of a violation.
d. The
rules and penalties shall be applied
evenhandedly and without discrimination.
e. The
penalty shall be reasonably related to the seriousness of the offense and the
past record of violations.
6. In
lieu of initiating an enforcement action, the Board or the applicable Committee
may mediate a dispute between Unit Owners and/or Residents over an alleged
violation. [Mediation Rules
omitted. Bold face emphasis is added.]
Our complaint against the Board is about its assessment of a fine
against us based on a lie and that the Board did not undertake any of the
required processes listed in item 5, above.
This is abuse of process because of the lying and the failure to
investigate fairly and objectively before issuing the fine. It is harassment because of who is doing it
(David Rasmussen, with intent, because he was totally aware before sending the
fine assessment letter that there was no complaint on record, that the parties
had resolved the matter, and had agreed that it was an accident.) The January
16th letter is incontrovertible evidence of the Board’s abuse of
process and ultra vires actions, yet
the Board refuses to withdraw it. That
kind of digging in of the heels for an indefensible position is what dictators
do and we are all going to pay the price one way or the other. How else can you read these sentences from
the January 16th letter, knowing there was no complaint on file, other
than as blatant and intentional lies?
“We have thoroughly reviewed the
complaint, the rules for the Association, and the statements from
documented witnesses. The findings of fact are that the complaint was valid, rule(s) were violated, and the
Association does have a duty to act on the matter” (Emphasis added)
So, to answer the question: Yes,
the Board may initiate an enforcement action as can a Resident by filing a
complaint. In either case, the careful process described in the Rules must take
place. In our case, the Board letter said there was a complaint but there wasn't and the Board failed to follow any of the required procedures to evaluate the rule violation it invented for its own purposes of harassment of specific Residents.
In
