"Why can't we use the pool after dusk?" the wiry man at the microphone bellowed. "I've been a swimmer my whole life and I need to use the pool to stay in shape" and with that statement, he pointed to his trim waistline to indicate how well his exercise regimen had been working.
I waited along with the audience to see how the President who was chairing the meeting would respond. Instead of discussing the safety concerns she had articulated to me earlier regarding night-time swimming in an unlit pool as well as a desire to save money by not having to heat the pool after hours, she chose, instead, to brush the mater off with a "because we said so" response and called for the next person who had a question to come forward. The swimmer's face reddened and he immediately voiced his outrage, launching into a full-scale denouncement of "this board's policies and arbitrary decisions."
I knew that this would not be the last the board would hear from this owner; likely his affront at the response would find other outlets, including repeated document inspection requests and perhaps even a recall initiative at some point. This was my third Board meeting that week and they all had involved, at some point, association members questioning the wisdom of one or more board rules. Experience has taught that whenever you tell people what they must do or what they must refrain from doing, you will almost certainly be met with the question, "why?" How a board member or manager responds to this questions can either inflame the situation or defuse it.
With the recent United Airlines kerfuffle still in the news, more people have been discussing the right and wrong ways to enforce policies. Do you use a carrot, a stick or alternate between the two? When a passenger was forcibly pulled off one of United's planes, there were differing opinions about which party bore the greatest blame. Some blamed Dr. Dao for failing to cooperate when the police arrived while others saw an abuse of power and poor decision making on the airline's part in ejecting a customer who had paid for a seat. Lastly, the initial statements made by the company's CEO that he regretted having to "re-accommodate" a customer were seen as downplaying the aggressive actions taken and only served to inflame an already sensitive situation.
When it comes to association rules and regulations, many boards prefer a stick and a big one at that. My job as association counsel is to ensure that boards can successfully enforce the rules they pass, otherwise they risk losing both credibility and control. A successful rule protocol has to (a) identify a real not imaginary problem (b) craft a reasonable rule to solve that problem and (c) communicate (a) and (b) to the individuals against whom the rules will be imposed.
If your board has a rule that requires head-in parking in the association parking lot, you might want to explain in your rules booklet and/or at the meeting where you will adopt that rule that you are doing so to avoid visibility issues and potential accidents as tail-in parking impedes the adjacent walkway. If another rule provides that renovation work can only be done within the units during certain times and months, you can improve compliance by including an explanation that the times and dates were chosen to minimize inconvenience to other residents when the community is most heavily occupied. If an owner understands that enforcement of the rule can also benefit them when a neighbor or other occupant violates same you might just have the "aha" moment which encourages compliance. Rules that are seen as petty or unnecessary are the most likely to result in your owners ignoring or openly defying same.
Volunteer boards can increase the likelihood of their members' voluntary compliance if they let them know why they have made certain decisions. Sadly, in some instances, a reasonable explanation will not satisfy certain members who cannot be assuaged regardless of the message conveyed. In those instances, enforcing rules violations can include levying fines, suspending use rights, denying lease approvals and, in the most egregious cases, pursuing arbitration and/or injunctive relief in court. However, don't assume that the rationale for even the most basic rules will understood by all your members and, without understanding, you cannot count on voluntary and consistent compliance.
When you explain the rationale for a rule, you are showing respect. For most people that will be enough as it allows them to comply while saving face.
As for the man who lamented his inability to engage in his nocturnal swimming habit, he joined the board a few years later and became one of the more vociferous proponents of that rule when he bore the responsibility of being a director.
Sunday, April 30, 2017
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