By Donie Vanitzian
-Association manager says official bulletin boards are 'only for information the board relays to the community'
-A homeowner association limiting access to official bulletin boards is illegal, and can get the board sued
QUESTION: Our homeowner association manager insists on having the only key and access to all four official association-owned locked glass bulletin board cases above mailboxes throughout the complex. Majority directors let her do whatever she wants. These glass cases are intended to post official board meeting minutes, announcements and information during the year.
At elections, she uses these glass cases to advocate for candidates she wants on the board. She says she's relaying information about the election. No opposing candidate views or information are allowed in those cases. She campaigns for her favorite candidates, giving them awards for things she makes up, like donating trees or canned goods to the community, and posts it in official glass cases.
She says that "all candidates can post their flyers at open bulletin boards throughout the complex," but open bulletin boards are used for rental ads and lost cat signs. I believe she's denying equal access to candidates other than the ones she wants on the board.
Owners believe and take seriously what's posted in official glass cases, and I've been refused access to them during elections. She says the official cases are "only for information the board relays to the community." Is this legal?
ANSWER: It's not legal, and it can get the board sued. In the California case Wittenberg vs. Beachwalk Homeowners Assn., there was a glass-enclosed community bulletin board controlled by the board of the Huntington Beach development. The board's newsletter was posted on the bulletin board, but non-board members were not permitted to post materials and were not invited to provide opposing viewpoints in the newsletter during a campaign.
Wittenberg plaintiffs, who were homeowners, alleged the association violated the law by permitting board members to advocate their point of view in an association newsletter and then refusing to permit opposing members to use the newsletter to express their point of view. Plaintiffs also contended they were denied free access to common areas as required by law.
In June 2013, California's 4th District Court of Appeal agreed with the plaintiffs: "If the Court created [a board-member exception] it would allow those in power the advantage of using association media to advocate a point of view to the exclusion of any opposing view. Such a construction would only further empower those individuals already in power, and would weaken those individuals not in power. Not only would [that] be fundamentally unfair, but it would facilitate rather than cure the evils intended to be remedied by the statute." The court held that "board members are treated as any other member."
Recognizing that elections prior to passage of Civil Code section 5105 (formerly section 1363.03) "had previously been contaminated by manipulation, oppression and intimidation of members, as well as outright fraud," the court adopted the plain English definition of "advocacy," stating it was "sufficiently broad to ensure one side of a debate cannot monopolize the use of association media."
In a gymnastic stretch of imagination, Beachwalk respondents argued: "The plain language of Civil Code section 1363.03(a)(1) provides that the equal access mandate is triggered only if a 'member' or 'candidate' is granted access to an association's media during an election. The statute clearly does not apply to communications made by an association.... Providing information to the membership about elections is consistent with a board's management duties imposed by [law]."
The court rejected Beachwalk's selective parsing of statutory languagecontending an association was exempt from advocacy while members and candidates must follow the law. It strongly rejected any conclusion that the board's "communications were purely informational and thus not advocacy."
Recognizing the board's refusal to publish an article opposing an advocacy article the board had published in the association's newsletter, the court held that "undisputed evidence shows the association failed its duty" by engaging in advocacy. The board was now bound by law to permit other members equal access to association media.
Justices headnoted: "The association violated Civil Code section 1363.03(a)(2)," proffering that "the association nominally enacted rules parroting [the statutory language and] … it was undisputed at trial that the board's policy was to not permit homeowners to publish advocacy pieces in the newsletter or the association website, nor to permit homeowners access to the association bulletin board."
Wittenberg plaintiffs continually requested use of common areas during the campaign, but their requests were denied, prompting the court to state "the association's legal obligation … was to ensure access to the common area meeting space … to all members advocating a point of view … for purposes reasonably related to the election. The board did not fulfill its obligation."
Note that although a court may void any election results and impose penalties if election procedures were not followed, the statute does not automatically void those results.
Wittenberg justices held that while in the midst of an election, the board must either give equal access to opposing viewpoints or forego the use of association media to advocate its viewpoint; this includes official glass bulletin boards. Beachwalk Homeowners Assn. appealed to the California Supreme Court but was denied review.
Zachary Levine, partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian JD, P.O. Box 10490, Marina del Rey, CA 90295 or firstname.lastname@example.org.
Schiffer & Buus, Newport Beach,Eric M. Schiffer and William L. Buus for Plaintiffs and Appellants. (Homeowners)
Adams Kessler, Mary E. Gram, Aide C. Ontiveros and Adrian J. Adams, Los Angeles, for Defendant and Respondent. (Association).