Q: Thanks for your articles on rules. We follow the process correctly. I have a question. If the proposed rule is changed based on input from the community or board members before or during the second meeting, must it go out for community comment again or can the board adopt the revised (proposed) rule at the second meeting. It seems similar to the gut and replace approach of the legislature which can take an introduced bill on one thing and replace it with a wholly different bill without hearings, debate or public awareness as happened last year with AB130. — B.S., Murrieta.
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A: The rulemaking process is stated in Civil Code Section 4360. The statute requires that the notice sent out to homeowners must contain the text of the proposed rule change. At the second board meeting (at least 28 days after the publication of the proposed rule change) important input occurs during the mandatory open forum opportunity on the proposed rule change (Section 4360(b)), and the board may well decide to modify the proposed rule change.
If during that second board meeting, the board changes the proposed draft rule change, the process starts over- and the new proposed rule must be announced to the members at least 28 days before it is voted upon. The requirement is important because members may decide whether or not to attend to attend the board meeting based upon the announced proposed rule change.
Rule changes should be adopted carefully and in full compliance with the statute, to avoid the possibility a rule change might be invalidated because it was not adopted “with substantial compliance” with the statute’s requirements. Hopefully we would all agree that crafting the rule well is more important than passing a rule quickly.
Q: The board is planning to adopt a rule that gives the managers complete authority to review and decide the rule violation process. Board members have refused to hold the owners’ Rules Committee Meetings for seven months. Our bylaws read Rules is a Standing Committee with owner duty for: “Investigating reported violations of the published rules and regulations and making recommendations to the board.” Please confirm that a board is not permitted to adopt a policy manual rule that voids a bylaw. — T.H., San Diego
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A: It may be much more convenient to try to grant to the manager full authority to issue discipline, but that is not what Civil Code Section 5855 requires. That statute discusses discipline being issued by the BOARD, not the manager, and sets forth some important procedural requirements for the informal disciplinary hearing. Those requirements must be followed for the discipline to be effective, because Section 5855(g) states that disciplinary actions not following the statute are not “effective,” meaning they will not hold up if challenged.
I think a wise manager would not want to take on that responsibility, even if the statute allowed it, because managers are there to make recommendations and carry out decisions, but the ultimate decider has to be the board of directors, per Corporations Code Section 7210.
T.H., also the HOA’s rules must not conflict with the HOA CC&Rs or bylaws, pursuant to Civil Code Section 4205.
Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober LLP, a California law firm known for community association advice. Submit questions to [email protected].
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