De-escalating Conflict in a Violent World

Gun Violence on the Rise in HOAs

By Melissa Bauman Ward, Esq., CCAL

The world has always been a scary place at times and lately it seems like we’re experiencing more violence in our communities, particularly gun violence. Recent high profile cases involving the murder of an association manager in Atlanta and an HOA board president and her husband in Florida by disgruntled residents using guns has heightened both awareness and anxiety with regard to gun violence in our communities, even as government statistics suggest that the rate of gun violence is actually not on the rise Given that HOAs have limited authority with regard to regulating guns, what steps can associations take to protect their boards, managers, and residents from violent crime? 

REGULATING WEAPONS IN THE COMMUNITY

Any rule or restriction contained in the governing documents must be reasonable. In California, the penal code already prohibits unlicensed people from carrying loaded firearms in public places. Case law suggests that the common areas would be considered public places for this purpose. However, adding a restriction to the CC&Rs would seem to be of limited utility because the association’s enforcement powers are quite limited; such things are really matters for local law enforcement to handle. Further, regulating gun owners for simply being gun owners seems an improper regulation on status. Associations should focus on regulating conduct. The problem is that once someone is improperly using a gun, it’s too late to implement preventive measures.

One area where rules and policies could be helpful is conduct of in-person meetings. There is no valid reason for a director or member to bring a gun to a board meeting. The presence of weapons during a heated meeting could be very dangerous for everyone in attendance. Boards have the inherent corporate authority to run their private corporation meetings in a reasonable way. Reasonable restrictions include prohibiting audio or video recording, allowing only members to attend, and strictly following the Davis-Stirling Act with regard to member participation at meetings. We believe that prohibiting weapons at meetings, banning members who misbehave or engage in threatening conduct, and hiring security are all reasonable security measures within the board’s authority. This same approach is recommended for on-site association offices.

TURN DOWN THE HEAT ON DISPUTES

Boards that have a reputation for promptly investigating reports of violations or other concerns and take the time to listen to members are not only fulfilling their fiduciary duty as directors, they are also proactively de-escalating conflict, which can help prevent unnecessary violence. In addition to using disciplinary hearings as opportunities to discover facts, educating members regarding the rules and cooperatively solving actual problems using the dispute resolution tools mandated by the Davis-Stirling Act can help turn down the heat on conflict in the community.

The first level of dispute resolution, Internal Dispute Resolution or "IDR," involves a "meet and confer" session with the member and one or more directors (we recommend always having at least two people present for the association) and is intended to be an informal means of solving problems which have arisen. Attorneys may, but are not required, to be present.

Next is Alternative Dispute Resolution or "ADR," typically in the form of mediation. Mediation is a low cost and highly effective way of resolving disputes with the help of a mediator. The parties come to their own solution and agreement. It is almost always better to control your own destiny and settle a matter than leave it to the whims of a judge or jury.

Regardless of which form of dispute resolution is chosen, the board should take the sessions seriously and actually try to listen and empathize with the member and consider all reasonable solutions to the problem presented.

SAFETY FIRST

Finally, boards must take all threats to safety and security of the community seriously and take prompt action. Safety protocols such as rules prohibiting unregistered vehicles or propping open doors and gates should be enforced consistently. Maintenance of lighting, gates and fences, surveillance cameras, and other security systems must be prioritized. Failure to do so can result in significant legal risk to the association. Finally, establishing and maintaining good relationships with law enforcement helps with enforcement and crime prevention.

Zoom meetings are a safe way to meet when tempers are running high and security is a concern. If remote meetings are not possible, care should be taken in how the room is set up and how the meeting is conducted (professionally, stick to the agenda, limit member comment to a reasonable time and no more as set forth in Davis-Stirling), as well as whether additional security measures are needed.

In the event of actual threats of violence, immediate action must be taken. Law enforcement must be called without delay. Sometimes restraining orders must be obtained to protect employees. Members who are threatening should be prohibited from attending meetings in person or private security or the police should be in attendance at meetings where safety is a concern. It is better to adjourn a meeting than risk a dangerous confrontation.

Overall, the same principles that control fair governance also help make our communities safer. Reasonable rules should be adopted and enforced equally. Reports of violations and disputes should be investigated promptly. Members should be given the opportunity to tell their side of the story early in the process. And actual safety and security threats must be taken seriously and law enforcement involved when necessary.

Melissa Ward is a partner at the Adams Stirling PLC law firm. She recently served on a criminal jury in a matter involving a shooting in an HOA common area which resulted from a dispute over a Shih-Tzu named Lovely.