Evidence at Disciplinary Hearings
Before an association can impose a penalty against a member for violation of the Operating Rules or CC&Rs, it must have persuasive evidence of a violation and hold a hearing at which the accused can view and dispute the evidence. Evidence can be eye-witness testimony, photos, videos, documents, or anything likely to prove the alleged violation. Sometimes the accused member will demand pre-hearing discovery.
Boards should adopt a "discovery" policy which includes the disclosure of evidence relevant to the hearing so the accused can prepare a defense. Boards can adopt one of the following policies:
- Send relevant evidence to the accused at least 24 hours prior to the hearing, or
- Use the small claims procedure of exchanging evidence at the hearing a few minutes before the start of the hearing. The accused should bring two copies of any documents and pictures he or she intends to present at the hearing so that one set can be given to the board. This is the most common procedure used by associations.
Often the accused demands the files of all other owners with similar violations. The board should decline such requests out of privacy considerations for other owners. The issue is whether the accused violated an Operating Rule or the CC&Rs, not whether other members also violated the Operating Rules or CC&Rs. This is no different than the practice followed by courts. The accused does not have a right to conduct depositions any more than they have for small claims hearings.
San Diego HOA Management