October 2, 2024
One reoccurring topic in HOAs and condominiums is the lack of civility and what sort of decisions the board can make to require civility. This is also a hot issue in nonprofits, houses of worship and private school organizations. Should a member of an association sign a civility pledge? I view civility as a core value of humanity. I spend much of my time litigating or resolving disputes for my homeowner clients with their community leaders. I have observed many situations where civility was deficient on the part of someone, be they an elected, vendor, or member. Community associations make decisions in deliberative gatherings of owners or directors. Civility is a prerequisite to a discussion or conducting a vote. Everyone is partially responsible for civility. Ordinarily, civility is achieved among strangers by rules of order. While civility does not necessarily require one to defer to others in matters of judgment, sometimes a dissenter must respect the outcome of the process when matters of business judgment are made through proper procedures.
One approach is to create a “civility policy” that the board adopts for the directors to use in dealing with each other, or it may take the form of a policy resolution, or a more aspirational pledge. The purpose of this blog post is to provide a director, committee member or homeowner with food for thought when asked to sign a civility pledge by leaders in their condominium or HOA. One can be committed to civility while skeptical of such pledges.
The Community Association Institute, an influential trade association, is all-in on civility pledges. CAI professionals know from experience that volunteer boards in our present day and age push back hard on the use of formal rules of order to structure decorum. We live more in an age of emotion, not motions. CAI provides their members (HOA lawyers, managers, vendors and leaders) with a Civility Pledge form. They say the board can address the lack of civility by formally adopting the “Community Association Civility Pledge” as an official policy. The form includes some well-meaning language about accountability, respect, common ground, civil discourse, and so on. The Civility Pledge refers to CAI’s “Rights and Responsibilities for Better Communities,” a similar form. The latter is a confusing two-page document. This summary is vague regarding the rights of homeowners and the duties of directors, while sharing an expansive view of the prerogatives of the board and the duties of homeowners. However, each association has its own governing instruments which vary from what is stated on this summary.
Many board majorities have become so frustrated by protracted disagreements with certain directors or homeowners that they ask their attorney to sue that person for harassment. The lawsuit seeks an injunction against the defendant from continuing her conduct towards directors, managers or other agents. In some situations, these lawsuits run afoul of law, which does not generally permit judges to restrain defendants in advance from speaking. Such lawsuits try to rely upon certain provisions of recorded instruments that prohibit owners from using the property or common areas for an “improper” or “nuisance” uses. However, such provisions typically contemplate a misuse of property, not interpersonal disputes over exchanges of words. Sometimes, the association’s attorney will threaten such a lawsuit to try to deter unwanted conduct. The specter of such litigation often lurks behind discussions about civility.
Do community associations really need civility pledges in addition to the recorded instruments they already have? Or does this question obscure the real issue? Unfortunately, once a level of acrimony arises, pledges do not really provide the band aid that is needed. The disagreeing parties may simply continue to argue, only now saying that their opponent is violating the pledge. Or the refusal to sign a pledge may be complained of as evidence of a lack of civility.
What has been lost (and needs to be regained) is a sense of trust or confidence that another person or group will do what they ought to do, under the laws and recorded instruments . . . without being forced by a judge. Acrimony arises because of the sense that trust is missing, and disagreement continues. Trust can be built over a period of years, only to be lost in an instant.
We live in a moment in which faith in institutions is at a low point. There is much confusion about the difference between earning the confidence of team members versus a kind of apparent respect that is actually a fear of retaliation (i.e., power-based persuasion). How can owners, directors and professionals thrive when there is lack of trust, faith in others, and confidence all around them? Here are a few ideas:
- Focus on resolving disputes amicably, when possible, rather than arguing about civility.
- Inspiring confidence and respect ought to be a continuing effort, rather than simply expecting respect because you have power over others (or exercisable personal rights). If trust has been completely broken, one has to consider whether to try to rebuild it where one is, or to sell the home and move elsewhere for a fresh start.
- It is possible to have all sorts of disagreements with others where there are different viewpoints based on varying interests in the matter where the dispute may not be about the character flaws of someone involved. Because someone disagrees does not necessarily mean that one of the parties involved have a serious character flaw.
- Consider following Robert’s Rules of Order. The idea behind Robert’s Rules of Order is that without commonly accepted procedures, communications in meetings can be a free-for-all, with certain individuals trying to gain control of decisions by talking over others. While this may seem old-fashioned, rules of order provide a framework for civil discourse.
Proponents of civility point out that in many associations there is one or two owners (who may also be directors), who are so misanthropic that they poison things for everyone, and the civility policy is necessary to show what is the root problem. But truly misanthropic personalities will not be tamed by a civility pledge.
What should a director or committee member do when asked to sign or vote on the CAI Civility Pledge or some other policy resolution regarding civility? Should a member of an association sign a civility pledge? One ought to read such materials carefully. Sometimes, the resolution may be captioned or titled as such, but if you read the fine print, it actually functions as something of a waiver of the rights of a dissenting director, limits statutory rights to obtain and share information regarding the finances, or otherwise changes the business of the board or committee from a deliberative body to a rubber-stamping activity. Sometimes, a pledge or resolution can actually make civility worse. One ought not to be browbeaten into agreeing to a civility pledge when what is really needed is for resolution of an underlying dispute and further work to rebuild trust.
Other related article on this blog: Does Civility Still Matter in Community Associations?
