Steps to be Taken in Advance
Among the steps that every association should take are the following:
- Consider, establish and publish policy resolutions dealing with association governance, including those required under SB 05-100, and the following additional policies:
- Special rules for member meetings, especially special member meetings;
- Newsletter editorial policy;
- Distribution of literature within the community; and
- Nomination, campaigning and election processes.
- Establish and operate the community with an open system for the adoption and implementation of policies, regulations and budgets.
- Insist that the board be open and accountable. Open meetings, with some exceptions, are required by state law.
- Be reasonable and put the “Community First.”
- Establish and operate committees with clear boundaries.
- Do not prohibit dissent or different points of view. Promote a culture of disclosure.
- Protect management from interference by owners.
- Develop and make extensive use of all possible means of communicating with the owners.
- Purchase and maintain insurance that protects the association, board members, officers, committee members and the managing agent.
- Educate owners on association operations and do not be annoyed when owners are unaware.
- Hostile responses to owners may energize their inquiries.
- Rebuttal to all points, especially at the time raised by interested owners, is not necessary. The board should investigate and determine how to proceed.
Responding to Controversies
The problem of controversies in communities governed by owner associations is an evolving one. Relief is available through parliamentary procedures, termination of committees and dismissing covenant enforcement actions.
Yet, controversies can become severe. This is true in two respects. First, the tactics adopted by concerned owners can be aggressive and hurtful with a negative impact on association operations. Second, owners may resort to agencies outside the association to force an agenda. Owners who believe that they cannot accomplish their objectives within the governance structure of their association may resort to the judicial system, to state and local legislative and administrative bodies, and to the media. For these reasons, associations need a range of responses. The association must have an ability to counter the claims asserted to agencies outside the community.
The overall plan in dealing with a controversy should look something like this:
- Try everything that can be done to turn the concerned owners into contributors instead of an expensive problem. Different points of view and dissent in the community should be welcomed and not repeated or sought to be precluded.
- Get the association members behind the board. Build consensus on decisions of the board.
- Look to minimize the costs of dealing with the concerned owners, both in terms of money costs and in terms of interference with the association’s operations.
- Be confident that the association will likely win in court, or else do not go to court.
- Do not bring the media into the controversy.
- Be cordial in dealing with administrative agencies but recognize that they frequently view themselves as champions of individual citizens.
- Lay the ground work with state and local elected officials so that if a disruptive owner appeals to them, they will recognize that your association is a fair and reasonable one and represents a significant group of voters and supporters.
Using the Judicial System to Deal with Controversies
Our courts are not generally up to the task of dealing with controversies in community associations. Judicial remedies are piece-meal and the expense of obtaining a judicial remedy is high. It takes a long time to obtain a ruling and enforcing the ruling is not easy. Also, judges are not readily convinced of the bad faith of any concerned owners and tend to be protective of the individual rather than of the association.
Still, there will be occasions when no other remedy is available except to go to court. Outlined below here are the civil and criminal claims on which the association or an individual target of the disruptive owner may rely for judicial relief.
Actions for Injunction
Colorado state statutes prohibit civil harassment. Civil harassment may be sought to be stopped by filing a complaint against an abusive individual where damages or injunctive relief can be requested from the Court. Courts may issue orders to owners prohibiting them from doing or continuing some act that violates law or the covenants and is injurious to the association when the harm from the act cannot be adequately remedied by money damages. An injunction order can be either mandatory or prohibitory. That is, it can require something to be done or order something not to be done.
Each municipality or county may define “criminal harassment” differently. So, depending on where you live, an action may or may not be “criminal harassment.” Criminal harassment cannot be threatened by the association against an owner. However, the association can ask the local prosecuting attorney (district attorney or city attorney) to bring a harassment charge. The prosecutor has discretion on whether to bring the charge or not.
Dealing with Government (Legislative and Administrative Agencies)
Concerned owners who seek their objectives outside the association often will turn to state and local legislative and administrative bodies, rather than the courts. This is true because owners are finding that if an association has adhered to its covenants and due process procedures, the owner will not fair well in court. In addition, going to court is an expensive proposition for individual owners. On the other hand, there are little or not costs associated with appealing to a legislative body or to a human rights commission, tenants’ rights commission or other governmental body. Thus, associations are finding it necessary to defend themselves in these forums.
Several suggestions are in order:
- Learn the ropes;
- Learn the players;
- Understand the limits of the government’s or agency’s jurisdiction;
- Understand the appellate process; and
- Be moderate and be truthful.
Dealing with the Media
Media coverage of associations can affect how the public views owner associations generally, but such coverage virtually never has any lasting impact on an individual association.
For this reason, it might be argued that an association can afford to ignore the media and media treatment of an individual story about an association or its affairs. The reality is, however, that association officers are loath to permit a negative story to be run about the community and are always anxious to influence the media to cast their community in the best light possible in all circumstances. When a concerned owner turns to the print or electronic media, the association’s officers will surely want their side of the story to be attractively presented to the media and, through the media, to the public.
Here are some general suggestions for dealing with the media:
- Plan, prepare and practice.
- When the press calls, what should you do?
- Don’t answer questions “on the fly.”
- Do ask questions of the reporter. Here are the questions to ask:
- When is your deadline?
- When can I call you back?
- Who else have you interviewed?
- Who else do you plan to interview?
- How did you hear about this?
- Where did you get your information?
- Ask for copies and other supporting documents.
- Don’t immediately dismiss the notion of speaking to the reporter.
- Determine worthiness.
- Should you do the interview?
- What do you stand to gain . . . or lose?
- Do you have or can you get all the facts?
- Can you do the interview without getting defensive?
- No comment implies guilt.
- Determine your key messages.
- What is the issue?
- What is your involvement in the issue?
- Why is it important? Who cares?
- What kind of analysis can you provide?
- Clear statements that can back up your point
- Key messaging:
- Conclusion – a sound bite always begins with the conclusion.
- Evidence – offer one or two brief points of explanation, elaboration, or support.
- Meaning – explain how it will affect the viewer/reader.
- Answer directly, honestly and truthfully.
- Be strong, positive and committed in your response.
- Cite evidence, facts and proof.
- Cite benefits.
- End on a short, punchy and decisive note.
- Anticipate reporter’s questions:
- loaded questions;
- unacceptable alternatives;
- hypothetical situations; and
- silent treatment from the reporter.
- Become a prompt and reliable source of information.
- Be proactive.
- Be truthful.
- Be helpful.
- Don’t get annoyed.
- Don’t seek revenge.
- Resist attacking the disgruntled owner in speaking with the media.
- Understand the basis on which any conversation with a reporter is had.
- Decide in advance who will be the single spokesman for the association.
- Respond succinctly, with brevity, a theme and a clear message.
- Consider consulting with a personal media consultant.
- Always assume you are on the record.
- “No comment” is not helpful. A responsive, brief, themed comment is helpful.
- Do not repeat negative statements.
- Be gracious and maintain your composure.
- Don’t use terms like “us” and “them.” Use the terms “community, the “owners,” etc.
- Be public, not private.
- Reflect community desires.
- Always be impartial.
- Don’t make threats.
- Represent everyone.