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Re: Request for records pursuant to new Civil Code (Davis-Stirling Act) section 1365.2 Dear Neighbors and Directors: As a Member of RMA, I hereby request, pursuant to Civil Code 1365.2 (attached), copies of each of the following accounting records and/or operating rules of the Association: 1. The payroll register and payroll journal pages reflecting all compensation paid to each RMA employee during the calendar months of November 2003 and December 2003. Please delete the names, SSNs and other personal identity information of each RMA employee, and substitute the job classification or title of each, as provided for by Civil Code 1365.2. 2. All contracts, invoices and payment documents exchanged between the Association and contractor/consultant Phil Jarvis (and/or his firm) in calendar years 2002 and 2003. 3. RMA's current "Accounting Policies and Procedures Manual." I will not sign RMA's "admonition" agreement, which imposes secrecy restraints upon Members which are not authorized by any law. That "admonition" misstates the law and illegally forbids Members' free political debate of how their dues are spent. 1365.2 does not authorize RMA to hold Members's rights to the books hostage to a demand for a confidentiality. RMA cannot legally refuse to perform its duties under 1365.2; it has to comply with the law as written. This records request must be fulfilled in the manner specified by the statute. My refusal to sign the RMA/CACM "admonition" provides RMA no legal excuse to withhold any of the requested records. I urge that the board check the legal authorities and directly consult with counsel yourselves to hear counsel's opinion on these statutory compliance issues, because CACM's "advice" will bring RMA trouble. I acknowledge that new section 1365.2, a copy of which is attached, provides that Association records "may not be sold, used for a commercial purpose, or used for any other purpose not reasonably related to a member's interest as a member." I agree, of course, to abide by that law, and with all applicable laws protecting employees' rights. I have no interest in this information which is NOT reasonably related to my interest as a member, and specifically to my longstanding interest in opening the books and records and politics of the Association to Member scrutiny. RMA's "admonition"
goes much further than the law permits, by requiring Members to compromise
HOAs and their managers statewide have often obstructed their members' rights to financial records under Davis-Stirling, especially compensation of managers. Assembly Bill 104 deliberately changed the law to reject the secrecy arguments made by the professional industry groups who sought to restrict Members' rights to audit and criticize Association compensation and spending records, adding an express statement that employee and contractor compensation can NOT be kept secret from the Members, and adding penalties for Associations who continue to unreasonably refuse to comply with Members' demands to see the books. The broad secrecy conditions in RMA's "admonition" may not be exacted as a precondition to RMA's compliance with that law. The General Manager's lobbying outfit CACM, who published the so-called "legal advice" upon which the Board relied upon in hastily adopting the gag order "admonition," attempted unsuccessfully to get the bill amended to shield managers' compensation records from criticism by nosy dues-payers, bluntly implying that we're all too dumb to understand them anyway: "Opposition still remains from community managers who object to any disclosure of the compensation paid to individual employees of the association. The California Association of Community Managers states in their letter that disclosing the amount paid to managers or other employees would serve no purpose because individual homeowners "will typically not have the training to evaluate whether the rate of pay is just or unjust." "The author and supporters; however, point to amendments taken in the Senate Judiciary Committee that provide that no account numbers, social security numbers or other personal information that may lead to identity theft or fraud should be disclosed. Instead, employee salaries will be listed by job classification and not by individual names. Finally, it is questionable what kind of training is necessary to evaluate salaries considering the most association members could seek to do is to solicit competitive bids from other managers or vendors if they feel the association is overpaying for services." (Assembly Floor Analysis of AB 104, , p. 3, attached, and also available at http://www.leginfo.ca.gov/cgi-bin/postquery?bill_number=ab_104&sess=CUR ) The association managers' lobbyists lost that argument in the Legislature. The law as enacted specificies that RMA salaries may NOT be withheld from Member examination and debate: "(2) Except as provided by the attorney-client privilege, the association may not withhold or redact information concerning the compensation paid to employees, vendors, or contractors. Compensation information for individual employees shall be set forth by job classification or title, not by the employee's name, social security number, or other personal information." I agree to pay RMA's standard per-page copying charge and postage. Note that the statute does not permit recovery of "search fees" but only actual copying and mailing costs. That, too, was thoroughly debated in the Legislature, as is reflected at page six of the Senate Judiciary Committee Analysis of AB 104, which is also attached and also available online at http://www.leginfo.ca.gov/cgi-bin/postquery?bill_number=ab_104&sess=CUR I am asserting my rights under this new statute, and I formally request that RMA comply with what the statute actually says ,rather than rely on self-serving spin from the association management industry's propagandists. The statute affords RMA no authority to require Members to sign RMA's secrecy pact. RMA is free to distribute a "notice" stating RMA's or the General Manager's opinions, but Members are not obliged to sign any document stating or implying that we agree to be bound by those opinions. I assert my rights under section 1365.2. I require full compliance with the law by RMA. The statute allows RMA 10 days to comply with this written request for copies. I hereby extend that time to twenty days, to allow time to permit discussion of these issues in January's regular meeting of the Board and to afford the Board ample opportunity to consult with a real attorney regarding the biased "advice" it has accepted from the association managers' trade group CACM, which unsurprisingly places the political and job security interests of THEIR own members, the managers, ahead of the explicit statutory rights of YOUR members to whom you owe YOUR duties. CACM's counsel do NOT owe any fiduciary loyalty to this Corporation, and their bad advice is leading RMA into treacherous legal waters. I urge RMA to CONSULT WITH its OWN counsel on RMA's duties under this statute, unfiltered by the opinions and biases of affected employees and their lobbyists. Thank you for your attention to this request. I look forward to answering any questions the Board may have, at the Board's pleasure, at the January meeting of the Board. -- Wilbur Haines, attorney at law; member, Lot 423, January 5, 2004 Add YOUR opinion | Back to the top
For the first time, homeowners' association members have been provided with a number of rights regarding information to which they now have access. At the RMA board's December meeting, the issue was raised at the very end of a four-hour-plus meeting, under general manager's comments. It was suggested by the organization which represents HOA managers (not residents) that residents sign an "admonition" letter prior to receiving the information allowed in the law. Nowhere in the new law is there any mention of such a letter. I realize the board was somewhat "under the gun," as it was their final meeting prior to Jan. 1. However, since the bill was signed into law three months earlier, I believe a more thoughtful and proactive stance on the part of the board members was feasible. I hope they will rethink their December decision to allow members what the law clearly states they may have from association records. Our dues keep rising, yet sometimes it's hard to tell exactly why. On Friday, Jan. 2, I hand-delivered a copy of the following letter to RMA. I would not sign the "admonition" letter, so I received no data, which I had requested. It is not a question of being "nosy," as some have put it; rather, it is an effort to get a handle on our ever-increasing dues and to be able to allocate a dollar cost per rooftop in true association costs. I believe you can access AB 104 as chaptered on this site. Please read it and see for yourself the rights now afforded the members of the thousands of HOAs in this state.
-- Bobbi Belton, January 4, 2004 Editor's note: You can read the bill here, and you can read the RMA's "admonition notice" here. The law allows members to inspect employee pay records and amounts paid to vendors or contractors, but the RMA document says members who get this information may not discuss it at any association board or committee meeting, or with anyone who is not an association member, or with an association member who has not signed the admonition letter. Further, it says the information cannot be distributed in any written form. Add YOUR opinion | Back to the top BACK to letters index |
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In response
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Another request for RMA information under new state law