6.1 Board of Directors to Designate Hearing Board.
The Hearing Board shall be comprised of three (3) persons designated by the Board of Directors of the Association. The Members of the Hearing Board may be appointed by the Board at its annual meeting or at any other regular or special meeting of the Board, or may be appointed on an ad hoc, as needed basis. The Board may also from time to time designate a person or persons to serve as Alternate Members of the Hearing Board to be available in the event of the temporary absence or disqualification of a member of the Hearing Board.
6.1.2 Temporary Hearing Board.
By a majority vote of the Board, the Board may decide to have a complaint pursuant to this Article heard by a Temporary Hearing Board composed of three persons designated by the Board, who may, but need not be Unit Owners or members of the Board of Directors. In the alternative, in its discretion, the Board may decide to have a complaint pursuant to this Article heard or Temporary Hearing Officer who is an impartial outside arbitrator or an impartial community association attorney chosen by the Board. For all purposes, the powers and the duties of a Temporary Hearing Board or Temporary Hearing Officer shall be identical to those of the Hearing Board in connection with any matter referred to it by the Board, and all references in these Bylaws to the Hearing Board shall be deemed to include any Temporary Hearing Board or Temporary Hearing Officer.
6.1.3 Temporary Absence of Members.
If any Hearing Board Member is or expects to be temporarily unable to carry out the responsibilities of his or her office for a period of thirty (30) days or longer, that Member shall notify the Chairperson who may request an Alternate to serve in his or her place during the period of the absence. The Chairperson shall also appoint an Alternate to participate in the proceedings of the Hearing Board in the place of a Member when a Member disqualifies himself or herself on a particular matter.
The Hearing Board is authorized and empowered to hear and determine all complaints concerning violations by any person (the "Respondent"), including a Unit Owner, a Unit occupant, and the Association, of the Governing Documents or of any decision of the Board made as provided in the Governing Documents. The Hearing Board is further authorized and empowered to impose a fine as provided in Sub-Paragraph 18.104.22.168 of the Bylaws in an amount not to exceed the maximum rate established by resolution of the Board on any person whom it finds to have violated the Governing Documents, and to require the non-prevailing party to reimburse the Association for its costs, including reasonable attorney's fees, in connection with the matter.
The Hearing Board shall select a Chairperson of the Hearing Board and a Secretary of the Hearing Board. If no other person has been selected to act as Secretary of the Hearing Board, the Managing Agent shall act as Secretary of the Hearing Board, but shall not be a voting member thereof. If either the Chairperson or Secretary is replaced by an Alternate as provided in Paragraph 6.1.3, or a Temporary Hearing Board is designated as provided in Paragraph 6.1.2, the members of the Hearing Board shall elect a Chairperson Pro Tern and or Secretary Pro Tern as the case may be. If a Temporary Hearing Officer has been appointed, he or she shall perform the functions of the Chairperson, and the Managing Agent shall serve as Secretary of the Hearing Board but shall not be a voting member thereof.
6.2 Pre-Hearing Procedure.
6.2.1 Informal Dispute Resolution Procedure.
It is intended that an informal process be followed prior to the initiation of a formal hearing process against a Unit Owner or other occupant of a Unit. To that end, any Unit Owner, employee or agent of the Association has the authority to request that a Unit Owner or occupant of any Unit cease or correct any act or perform any omission which appears to be in violation of the Governing Documents or of any decision of the Board made as provided in the Governing Documents. The informal request must be made, either verbally or in writing, prior to initiation of the formal hearing process.
6.2.2 Written Complaint.
If the dispute or violation is not resolved informally as provided for under Paragraph 6.2,1, the formal hearing process may be initiated by filing a written complaint by or with the Managing Agent of the Association or the Secretary of the Hearing Board. The complaint may be filed by any Unit Owner or occupant, including a member of the Board, or may be filed by an employee or agent of the Association (the "Complainant"). The complaint shall be signed by the Complainant and shall contain a written statement of the charges setting forth in ordinary language the acts or omissions with which the Respondent is charged. In order to allow the Respondent to prepare a defense, the complaint shall identify the specific provisions of the Governing Documents or decision of the Board which the Respondent is alleged to have violated and shall state as many of the specifics as are available regarding time, date, location, nature of violation, persons involved, etc. The complaint shall also set forth the efforts which were made to resolve the matter informally as provided in Paragraph 6.2.1.
6.2.3 Service of Complaint and Notice.
Within a reasonable period after receipt of the complaint, the Secretary shall cause it, together with a Notice of Respondent's Rights and Hearing (the "Hearing Notice"), to be served upon the Respondent, at the Unit address or at such other address which the Respondent has requested in writing that the Association use for the purpose of notices, The Hearing Notice shall be in substantially the form contained in Appendix Abut may contain additional information. Service of the complaint and Hearing Notice shall be by leaving same with the Respondent personally, by leaving same with a person of suitable age and discretion at the Respondent's residence or by first class mail. If service is by personal service, the Secretary or other person accomplishing same shall file a declaration under penalty of perjury with the Secretary stating the person served and the time and place at which service was had. If service is by mail, the Secretary shall prepare a declaration under penalty of perjury stating the time and place at which the complaint and Hearing Notice were deposited in the United States mail with first class postage prepaid and further stating the person and place to which same was addressed. Service by mail shall be deemed to have been made three (3) days after mailing. Service of the complaint and Hearing Notice shall be made at least ten (10) days before the hearing date. A copy of the Hearing Notice shall also be served on the Complainant at least ten (10) days before the hearing date. No order adversely affecting the rights of the Respondent shall be made in any case unless the Respondent shall have been served as provided for in the Bylaws. Service upon the Association shall be made by service upon the Secretary, President or Managing Agent of the Association.
6.2.4 Rescheduled Hearing.
If the Complainant or Respondent can show good and sufficient reason why they cannot attend the hearing, they must notify the Secretary of the Hearing Board at least forty-eight (48) hours prior to the originally scheduled hearing except in cases of unexpected emergency. The Hearing Board shall reschedule the hearing if, in its discretion it determines that good cause has been shown.
6.2.5 Objections to Complaint.
Any objection to the complaint on the grounds that the Hearing Board has no jurisdiction over the acts or omissions alleged in the complaint or that the complaint is so indefinite or uncertain that the Respondent cannot identify the violating behavior or prepare a defense must be presented to the Hearing Board in writing within seven (7) days of the date on which the complaint is served on the Respondent. The Respondent shall also serve a copy of the objections on the Complainant within that time period. If the Hearing Board determines, either as a result of an objection or on its own initiative, that the complaint is insufficient, the complaint will be returned to the Complainant with a letter stating the reason for the rejection.
6.2.6 Amended Complaint.
Not later than seven (7) days prior to the date set for the hearing, the Complainant may file an amended or supplemental complaint with the Secretary, who shall cause a copy of the amended or supplemental complaint to be served upon the Respondent in the manner required in Paragraph 6.2.3 not later than 72 hours prior to the time set for hearing.
Failure of one party to appear at a scheduled hearing, where that party prior to the hearing has failed to show good cause why the hearing should be rescheduled, does not preclude the Hearing Board from proceeding with the hearing, receiving evidence from and hearing arguments by the other party, and rendering a decision in the matter. Upon failure of the Complainant to appear, the Hearing Board may, in its discretion, terminate the matter.
6.2.8 Discovery of Witnesses.
By written request to the other party, with a copy to the Secretary of the Hearing Board, either party is entitled to obtain the names and addresses of the witnesses who will testify at the hearing to the extent known to the other party. Such disclosure shall be provided within seventy-two (72) hours of the request to the other party, with a copy to the Secretary of the Hearing Board, and if such a request has been made, no witnesses will be allowed to testify except those who have been disclosed, unless the opposing party waives objection to the witness during the hearing.
6.2.9 Discovery of Documents.
By written request to the other party, with a copy to the Secretary of the Hearing Board, either party is entitled to inspect and make a copy of any statements, writings, investigative reports or photographs relative to the subject matter of the hearing. Such disclosure shall be provided within seventy-two (72) hours of the request to the other party, with a copy to the Secretary of the Hearing Board, and if such a request has been made, no statements, writings, investigative reports or photographs will be allowed to be introduced at the hearing except those that have been disclosed, unless the opposing party waives objection to the witness during the hearing. Nothing in this Paragraph 6.2,9 shall authorize the inspection or copying of any writings or other thing which is privileged from disclosure by law or protected as attorney's work product.
It shall be the duty of each Member of the Hearing Board to make a determination as to whether he or she is able to function in a disinterested and objective manner in consideration of the matter before the Hearing Board. Any Member incapable of objective and impartial consideration of the case shall disclose that to the Hearing Board and shall disqualify and remove himself or herself from participation in the consideration of the proceedings, and have it so recorded in the minutes of the Hearing Board. In that event, the Chairperson shall designate an alternate to serve in the withdrawing Member's stead as provided in Paragraph 6.1.3.
6.2.11 Challenge to Impartiality.
Either party may challenge any Member or Members of the Hearing Board for cause where a fair and impartial hearing cannot be afforded; provided that the challenge must be made before the issuance of any order or the taking of any evidence or testimony in the proceeding. If there is a challenge, the Board shall meet to determine its sufficiency. If a majority of the Board sustains the challenge, the Board shall appoint an Alternate Member or Alternate Members to serve in connection with the matter or shall refer the matter to a Temporary Hearing Board or Temporary Hearing Officer as provided in Paragraph 6.1.3. All decisions of the Board shall be final.
6.3 Hearing Procedure.
6.3.1 Conduct of Hearing.
The hearing shall be heard by the Members and/or Alternate Members of the Hearing Board, The Respondent shall appear in person or by a duly authorized representative if the Respondent submits to the Secretary the written authority of the representative to appear on his or her behalf. The Chairperson, or in his absence the Chairperson Pro Terri, shall preside over the conduct of the hearing and shall make any necessary evidentiary rulings, The hearing shall be informal, At the beginning of the hearing the Chairperson shall explain the rules and procedures by which the hearing is to be conducted.
6.3.2 Order of Proceedings.
The order of proceedings shall be as follows:
22.214.171.124 Each party to the proceeding is entitled to make an opening statement setting forth their version of the case, starting with the Complainant.
126.96.36.199 Each party, starting with the Complainant, is entitled to produce evidence, witnesses and testimony, subject to Paragraph 6.2.8 and Paragraph 6.2.9, above. The other parties are entitled to cross-examine any witnesses and the opposing party.
188.8.131.52 Each party, starting with the Respondent, is entitled to make a closing statement. The Respondent is entitled to make a final statement in rebuttal following the Complainant's closing statement.
184.108.40.206 Any Member of the Hearing Board may question any party or witness. The Hearing Board Members may, on their own motion, call witnesses or secure tangible evidence. A party may within a reasonable time prior to the hearing date request the Hearing Board to call witnesses or secure tangible evidence. The request shall be granted in the discretion of the Hearing Board.
220.127.116.11 At the request of the Respondent, the Hearing Board may decide, in its discretion, to conduct the hearing in executive session.
18.104.22.168 Each party has the right to representation by legal counsel at his or her own expense.
22.214.171.124 Either party or the Hearing Board may cause the hearing to be transcribed by a court reporter at his, her or their own expense.
126.96.36.199 The Hearing Board may expel any person from any hearing for improper, disorderly or contemptuous conduct.
6.3.3 Rules of Evidence.
The following rules of evidence shall apply to proceeding before the Hearing Board:
188.8.131.52 Any relevant evidence which is not privileged and has not been excluded pursuant to Paragraph 6.2.8 or Paragraph 6.2.9 is admissible, regardless of whether the evidence is hearsay or otherwise inadmissible in a court of law. The Chairperson may exclude irrelevant, immaterial or unduly repetitious evidence.
184.108.40.206 At the request of any party to the proceeding, made in writing delivered to the Secretary of the Hearing Board at least five (5) days prior to the date of the hearing, or at the direction of the Chairperson, oral evidence shall be taken on an oath or affirmation administered by a Notary Public or other official authorized by the State of Washington to administer oaths.
6.3.4 Assurance of Voluntary Compliance.
The Hearing Board in its discretion, in lieu of or in addition to calling the hearing, may accept an Assurance of Voluntary Compliance from any Respondent. The Assurance may include a stipulation for payment of damages, costs or attorney's fees by Respondent to the Complainant and/or the Association. From time to time, a person who has made an Assurance of Voluntary Compliance shall provide all information the Board reasonably requests to determine whether the Respondent is in compliance with the Assurance. The Hearing Board is not precluded from further action by its acceptance of an Assurance of Voluntary Compliance if the Respondent violates the terms of that Assurance.
6.3.5 Decision and Order.
220.127.116.11 As soon as possible after all testimony and documentary or physical evidence has been presented to the Hearing Board, but in no case more than ten (10) days after the close of the hearing, the Hearing Board shall meet in executive session to deliberate and reach a decision. A majority of the Hearing Board shall be controlling. The decision of the Hearing Board shall be in writing, and shall summarize the evidence presented to and considered by the Hearing Board, shall state the facts upon which the Hearing Board has based its decision and shall contain a finding as to whether or not the Respondent has violated the Governing Documents or a decision of the Board made as provided in the Governing Documents. The decision of the Hearing Board must be based on substantial evidence which shall be set forth in the decision.
18.104.22.168 Upon a decision that a violation has occurred, the Hearing Board may order that the Respondent shall do or refrain from doing any act necessary to cause the Respondent to comply with the provisions of the Governing Documents and/or any decision of the Board. The order of the Hearing Board shall become effective ten (10) days after it is served on the Respondent in the manner provided for in Paragraph 6.2.3 of the Bylaws unless the Hearing Board otherwise provides in its order.
22.214.171.124 The Hearing Board may provide in its order for the imposition of a reasonable fine not to exceed the maximum amounts set from time to time by resolution of the Board. The fine may include a daily or other periodic fine in the event that the Respondent does not comply with the order of the Hearing Board, including the payment of the fine, within the allotted time. The Hearing Board may also provide in its order that the non-prevailing party shall reimburse the Association for its costs, including reasonable attorney's fees, incurred in connection with the proceeding. Any fine or charge so imposed by the Hearing Board shall be the personal obligation of the person against whom it is imposed, shall constitute an Assessment secured by a lien upon the Unit owned or occupied by that person, and may be collected as an Assessment in the manner provided in Article 5 of the Declaration.
126.96.36.199 The decision of the Hearing Board, including a minority opinion if any, shall be served on each party to the matter in the manner provided for in Paragraph 6.2.3 of the Bylaws. A copy of the decision and order shall be sent to the Secretary of the Association and shall be included in the books of the Association.
6.3.6 Judicial Enforcement.
Failure to comply with a provision of the Governing Documents or a Board Decision, or to comply with a decision of the Hearing Board following notice of a violation and an opportunity for a hearing, shall be grounds for an action to recover sums due for damages, which shall include any fines levied by the Hearing Board and any costs incurred by the Association in connection with the proceedings before the Hearing Board, maintainable by the Association (acting through the Board) on behalf of the Owners. Such failure shall further be sufficient grounds for the issuance of injunctive relief in such an action. Nothing contained in the Bylaws shall be deemed or construed as a waiver of the Association's right to bring an action as provided in this Paragraph without first exhausting the Association's internal enforcement procedures in cases where the Board deems immediate legal action to be necessary or appropriate. If the Board fails or refuses, after demand by an aggrieved Owner, to take appropriate action to enforce compliance with any provision of the Governing Documents, any Board Decision, or any Hearing Board decision, an aggrieved Owner on his or her own may maintain an action for damages or injunctive relief, or both, against the party (including an Owner or the Association) failing to comply, In any action brought by the Association or by an Owner as provided in this Paragraph, the prevailing party shall be entitled to recover as part of its judgment a reasonable sum for attorneys' fees incurred in connection with the action, in addition to taxable costs permitted by law.