A recent decision of the Illinois Appellate Court has significantly expanded the rights of Illinois condominium unit owners who are charged with rule violations, as well as the obligations of the board members who conduct those hearings.
In Boucher v. 111 East Chestnut Condominium Association, unit owner Michael Boucher was charged with violating a provision in his association’s Declaration that prohibits offensive and obnoxious behavior in the common elements as a result of two separate incidents. In the first incident, an association employee reported that when she tried to get on an elevator with him, Boucher allegedly yelled profanities at her and demanded that she get off the elevator. This incident was captured by a security camera recording. In the second incident, Boucher allegedly used profanity and was rude and disrespectful to an association employee when he demanded that he be allowed to pay for a replacement key card with cash, even after being informed that a cash payment could not be accepted. This second incident was described in a written complaint prepared by the employee who was involved.
The association issued violation notices to Boucher, and a violation hearing was held before the board. The board found that Boucher had violated the Declaration and fined him $500. Boucher paid the fine and then filed a lawsuit against the association, claiming (among many other things) that his violation hearing was not conducted fairly. More specifically, Boucher claimed that he was denied a fair hearing because the board refused to show him the video footage of the first incident and the written complaint against him concerning the second incident. The trial judge ruled in favor of the association on this claim, and Boucher appealed.
Two of the three judges of a panel of the Illinois Appellate Court disagreed and reversed that judgment, holding that condominium board members have an obligation of “full, fair, complete and timely disclosure of material facts” concerning allegations against a unit owner that may provide a basis for a fine or other penalty. On this basis, the Court determined that the board’s failure to provide Boucher with a copy of the video recording of the first incident and a copy of the employee’s written complaint concerning the second incident was sufficient to state a claim for breach of fiduciary duty against the members of the board.
One of the three judges on this panel of the Appellate Court disagreed strongly, noting in a lengthy dissenting opinion that Section 18.4(l) of the Illinois Condominium Property Act (“ICPA”) requires only that condominium boards give “notice and an opportunity to be heard” to owners who are charged with a violation.
The Court also addressed the extent to which rule violation proceedings are subject to the provisions of Section 19 of the ICPA, which governs unit owner access to association documents and records. The Court ruled that even though rule violation hearings may be conducted in a closed session, if a quorum of the board is present at a violation hearing, the board must (1) prepare a record of what transpired – that is, meeting minutes – whether in writing or in the form of an audio or video recording, and (2) make those minutes or recordings available to any unit owner, and not just the accused unit owner. In addition, the Court ruled that any unit owner is entitled to see and copy (a) the documents and records on which any notice of violation is based, (b) the evidence that the board considered at the violation hearing, and (c) a record of the penalties imposed.
The holding in this case will require that all Illinois condominium boards re-examine and make adjustments to their rule violation hearing procedures, including but not limited to the following:
If a unit owner charged with a violation asks for the information on which the violation is based, the board must provide that information, including copies of incident reports, unit owner complaints, complaints by management, photographs, video images, etc. (The Court did not indicate whether this information has to be provided in response to a request, or must be provided in every instance.) To the extent that owners and employees are not already reticent to report bad behavior, providing an accused owner with a copy of the underlying complaint may make them even more reluctant to report rule violations.
If a curious unit owner makes a written request for the information about a violation hearing against another unit owner, the board must provide that information to the requesting unit owner, including incident reports, complaints by management or other owners, video images, etc. (The requirement that an owner’s request for access to association records be supported by a proper purpose was eliminated by changes to ICPA Section 19 that took effect in 2018.)
Many boards have sought to spare their owners the embarrassment of being publicly identified as a rule violator by not identifying the unit owner or the specific nature of the offense when voting to impose fines. If a quorum of the board participates in the violation hearing, that information must now be made available to any unit owner who asks for it.
Unless a board wants to take written minutes of its violation hearings, it would be advisable to make an audio or video recording of those hearings as “minutes.” Whether recorded in writing or electronically, a copy of “hearing minutes” should always be made available to the accused unit owner (and to any other owner who requests a copy).
The Court in Boucher ruled that owners who are accused of a violation must be afforded an opportunity to cross-examine witnesses who testify against them. The Boucher decision does not, however, make clear whether the right to cross-examine witnesses applies only to witnesses who actually testify at the violation hearing, or if the right to cross-examine requires that the owner or employee who submitted a complaint appear at the hearing and be subjected to cross-examination.
Even if an accused unit owner has engaged in other violations, the violation hearing must focus on the matters charged in the notice of violation on which the violation hearing is based.
Boards will need to consider including hearing-related costs (e.g., legal fees, cost of copying documents or video images, cost of making audio or video recordings of violation hearings, etc.) as part of fine amounts because of the increased cost of conducting violation hearings in a manner that will satisfy the requirements of the Boucher decision.
Unless and until the courts or the Illinois legislature direct otherwise, condominium associations have no choice but to comply with these new requirements.
The Boucher decision also addressed other important issues, holding for the first time that the First Amendment applies to Illinois condominium associations, even though a condominium association is not a federal, state or municipal government. Those additional issues are addressed in a separate Saul Ewing Arnstein & Lehr Condominium and Community Association Practice Alert.