Published on: December 20, 2008
By Stephen Marcus
Inertia and disinterest are common problems in common interest ownership communities, which are often hard-pressed to find owners willing to serve on boards, volunteer for committee assignments, or even vote in association elections. So it is interesting and somewhat surprising to find that some homeowner associations are facing pressure to become more involved in local, state, and even national political affairs.
That pressure comes in the form of requests from owners and outside groups for associations to support or oppose various causes and to take public positions on political and social issues. It isn’t clear how widespread this trend is, or if it is a trend at all. But my firm has seen an increase in questions from association managers who say their boards are grappling with the issue and who are wondering how to advise them. Association attorneys and other industry professionals differ on what that advice should be.
Boards pondering political activity at any level must address two key questions:
- Should their association take public positions at all; and (if the answer is yes)
- Does the board have the authority to determine what those positions should be? State laws and the governing documents of most communities typically give boards broad authority to manage the community and to make decisions about matters affecting the common areas and common interests of owners. But they don’t say much about the political life (if any) of community associations or the role of boards (if any) in defining it.
The Massachusetts courts have provided some limited guidance, making it clear that boards have standing to testify on behalf of their community associations in zoning disputes (in which the association is an abutter). While owners have the right to testify as individuals, the courts have held, the board can speak for the association because zoning matters have a direct impact on the community as a whole.
Drawing the Lines
That legal reasoning seems clear enough when applied to zoning issues. The complication comes, and differences arise, when trying to define what constitutes a “direct impact” justifying board action and association involvement on one side or another of a political issue or public policy debate. If a developer proposes to locate a nuclear power plant or a toxic waste dump next to a community association, few would question that a board has the authority and a fiduciary obligation to oppose that plan on the association’s behalf. But municipal policies that support or limit commercial development, and bond issues funding public schools, parks or infrastructure repairs, would also affect the property values, tax bills and (potentially) the quality of life of association residents. Shouldn’t the association, through its boards, take positions on those issues, too?
The argument against is that some owners in every community will object to almost any position the association takes on virtually any issue, making it impossible for boards to take a position that truly represents the views of all owners. Boards that do so face risks from two directions: From opponents of an issue the board is supporting, who might question its authority to speak for the community association, and from owners who object to the positions the board is taking on the community’s behalf. I haven’t taken a formal poll, but the majority view within our industry seems to be that the political activities of community associations should be limited and narrowly defined, and that boards should obtain explicit approval from owners for any statements or actions purporting to represent an “association” view.
I understand these arguments but don’t entirely agree with them. While the concern about legal challenges is legitimate, it is probably overstated and outweighed, I think, by the need for community associations to define broadly and respond effectively to issues that affect their communities and the people living in them. Those issues aren’t limited to developments in the community’s back yard. Associations have good reason to speak out as well on development policies, school bond issues, tax proposals, and any municipal (or state) polices that affect the economic health and quality of life in the city or town – the broader community – in which the community association is located.
Exceptions to the Rule
Although I share the widely held view that associations, for obvious reasons, should not back specific political candidates – either by endorsing them or contributing money to their campaigns – I also see possible exceptions to that generally sensible rule. For example, there would be a strong argument for supporting a candidate who favored providing municipal trash services to common interest ownership communities over one who opposed that policy.
I wouldn’t suggest, by any means, that community associations should become political action organizations, nor am I suggesting that they should address every issue on the planet. Social causes – gay marriage, health care reform, abortion rights, etc. — no matter how topical, have no place on the association’s political agenda. The association’s “causes” must be directly relevant to the community and benefit it in some way. This list isn’t infinite, but it is larger and broader than some of my colleagues in the industry assume.
I also think boards have considerable discretion to speak for associations on these issues, even if some owners disagree with the positions they take, just as they have the authority to adopt rules and make management decisions some owners don’t like. Expressing an association position on issues affecting the community falls clearly and comfortably under the board’s authority to manage the association and to make decisions affecting its common areas and the common interests of owners.
Boards should exercise this discretion responsibly, however, and with restraint. Just because boards have the authority to do something doesn’t mean it is necessarily a good idea. Residents of some communities will be more supportive of political engagement than others and boards should reflect those preferences. A politically active board representing a politically passive community could create precisely the legal headaches cited by those who think associations should stay out of the political arena entirely.
I think the better practice is for associations to develop policies – preferably formal and written – defining how they will respond to requests that they testify, contribute funds, sponsor ballot initiatives, and otherwise take stands on public policy issues. Boards should solicit input from owners and allow them to vote on the policies the board recommends. These policies don’t have to be elaborate or detailed, but they should specify:
- Whether the association, as an entity, will take public positions.
- What categories of issues or causes the association will address.
- The decision-making process boards will use to select issues and define association positions on them. Associations might want to establish a committee to review requests and make recommendations to the board.
- How the board will express association positions – writing letters, testifying at hearings, contributing association funds, displaying signs, etc.
- Distinctions, if any, between issues/topics on which boards are authorized to speak on their own authority and those on which owner approval will be required. I’d suggest drawing that line between issues affecting the association’s budget or the board’s ability to manage the community (which the board should be able to address on its own) , and issues affecting residents individually as well as collectively, for which boards should obtain owner approval, even if they aren’t legally required to do so. Where owner approval is required, the policy should specify what percentage vote is needed to authorize an association position.
However broadly or narrowly associations define their terms of political engagement, communication will be essential. Board members must explain clearly to owners the positions they are taking or declining to take on the association’s behalf. Equally important, board members and association residents must distinguish clearly between public statements that reflect their views as owners and residents of a common interest ownership community, and statements that reflect the collective opinion of a community association they are representing