Owner Harassment

Alexis Firehawk: It’s also election day today, and we have noticed during politically charged times that there seems to be an uptick in what we’ll call bad behavior. In our collective experiences at the firm, we’ve almost seen it all, almost seen it all. Thank goodness we haven’t seen it all all, but we’ve seen things from simple disruptions to insinuations of improper actions. We’ve seen fully public allegations of theft. We’ve seen name-calling, we’ve seen overt threats of violence. In fact, just the other day I was attending a large annual meeting at a master-planned community and a person stood up from the back of the room and just started shouting profanity at the board and the management. Packed house with like 120 people in there, and so the question is, what do we do?

What do we do? Before we get into that, let’s do a quiz to celebrate election day and James and Chad’s birthday. Ed, I’m not putting you on the spot. Something Andrea and I just cooked up, so roll with it. Okay, so here are the rules. Oh, we’ve got 76 on. Hi, everyone. The first five people to put the correct answer in the chat will win a Starbucks gift card. Andrea’s going to be watching the chat, and she will contact you directly. We’re practicing the chat, y’all, because Ed and I are going to ask you to put your questions in the chat and at times we’ll pause and we’ll ask Andrea to read them to us out of the chat. This helps us avoid snafus with hot mics, so we’re going to practice our chat function right now.

Get ready. You’re going to type your answer in. First five. Stakes are high, it’s Starbucks cards. How many Electoral College votes does the State of Arizona have? How many Electoral College votes, oh, they’re coming in, does the State of Arizona have? Keep them coming. Do I see five, right? All right, so the correct answer is 11. Thank you guys for playing along. Now you found your chat function, that’s where you’re going to put your questions, and then Andrea has the pressure to track you down and give you your prizes. Okay.

Ed O’Brien: Good Luck.

Alexis Firehawk: Yeah, best of luck to you.

Andrea Rizen: I have all their information. It’s fine.

Alexis Firehawk: They registered. Genius. All right, so we’re talking about that laundry list of what I’m characterizing as bad behavior, and this type of behavior can really come from all different types of people in all different types of roles in the community. When Ed and I were preparing for this, we talked about how we’ve seen these behaviors on our own volunteer boards. We’ve seen them in interactions with opposing counsel, we see them with contractors sometimes. Today, we’re going to explore how to prevent and respond to disruptive behavior in the context of meetings and social media. Then, we’re going to talk about when bad behavior raises to the level of civil defamation and harassment that maybe requires protective orders. That’s our context today, which sort of frames the conversation around bad behavior, around behavior that we see from general homeowners, but we wanted to make it very clear that that’s not the only instance that this happens, and some of the tips that we’re going to share with you today really do translate to any type of difficult interaction you might be having.

We certainly don’t mean to present this in a way that only owners exhibit this type of behavior, but we think the most useful context for you is going to be in the context of meeting social media and then understanding both defamation and harassment. Then, before I move on, I’ll also give you our disclaimer that the information presented in this seminar today is current as of today, which is November 5, 2024, and it changes over time, as we all see every single year with particularly the flag law. This seminar also does not constitute legal advice. We’re going to always recommend that you speak to your lawyer. We hope that lawyer is us. Okay, so we’ll start with the boundaries of acceptable behavior again in two contexts. We’ll talk about meetings and we’ll talk about social media.

With meetings, we find these to be a super common situation for public displays of disruptive behavior. We thought it would be useful to talk about this context. If we’re being proactive, if we have the goal of wanting to prevent disruptive behavior, if we have the goal of wanting to react wisely to disruptive behavior, then Ed and I are going to challenge you to recognize, generally speaking, that people desire two things. They desire to be heard and they desire a certain level of transparency. The great thing is that the Arizona statutes control both of these things in the context of meetings. Regarding the opportunity to be heard, the statutes require that members are able to speak at appropriate times during the meeting, and this includes an opportunity to speak after a motion is made, but before the board votes.

What does that look like? It looks like maybe some preliminary information about the agenda item, and then it’s a motion, it’s a second. It’s board discussion, and then owner comment, and then the vote. Note the language I’m using around board discussion, so it’s time for that decision-making body to actually consider the information in front of it. Then, when we open up for owner comment, it’s just that. It’s comment, so it’s a time where the board can take that feedback into consideration before it exercises a vote. In meetings during this time period, there’s no obligation for the board to engage in a lengthy back-and-forth with the owner. That’s making a comment, and that applies whether the comment is very productive and professional and friendly or whether that comment is more disruptive and accusatory and defamatory.

There’s also no obligation to directly respond to every question that might be posed by an owner during the comment period in a meeting. If a comment bring something up that should be considered further, it needs more research, et cetera, to make an informed decision, our board members make an informed decision because they’re honoring that duty of care, then you always have the option to table the action. What I’m going to challenge you to do is in the idea of letting people be heard and facilitating transparency is that you don’t hesitate to open up that comment period before you vote and otherwise, whether you have maybe an open homeowner forum.

You open that up knowing that you don’t have to engage, you don’t have to answer all the questions right away, and that if something new and interesting and relevant comes up that you have the tool to table the decision to the next meeting, but if none of those things happen, you can continue with the vote. The owners just simply need to be heard before the vote goes forward, and the statute provides for that time. Does that make sense to everybody? Ed, is it your experience, too, that sometimes boards are hesitant to really flush things out in open session because they feel like having that audience can kind of chill the exchange, right?

Ed O’Brien: Absolutely. When we’re going to talk about what the association’s options are when it can’t stop the harassment, we hope that it can. de-escalation is often not comfortable, whether that’s allowing somebody to say things that you don’t like or something else that allows this person to feel this way, and just go away and go about their business, move on to the next agenda item. Now, de-escalation, it might feel like that to us, but to the other person it may just be all they wanted. de-escalation might even be an offensive thing to call it when all they really wanted was just to get their comment or question or whatever that may be out.

Alexis Firehawk: Yeah, there’s sometimes this very natural hesitation where you don’t want to open things up because you don’t want to face the scrutiny. What we’re challenging you to do is hear from a reasonable number of owners on both sides of the issue and take that scrutiny into consideration. Again, we’re going to talk about when the line gets crossed, but having a general perspective of communication can help proactively deescalate these issues. Okay, so regarding transparency, again, the statute talks about transparency, and what does that look like? In most cases, when it looks like transparency with association records, so when an owner asks for a copy of a record of the association, the copy has to be provided within 10 business days.

This is financial and other records of the association, and doing so in my experience in advance of meetings or on a regular basis or allowing the association records and information to be readily available on the web page. Sometimes that deescalates issues during the meetings because then you don’t get that owner that pops up and says, “Well, how do I get access to last year’s budget?” Or, “I didn’t see the meeting minutes from last quarter.” It sort of takes away those types of complaints in that meeting forum. We see the same hesitations in terms of transparency with records. If you’re not sure if the thing the person asked for, whether or not it’s an association record, ask your lawyer.

It’s not well-defined in the statue what is an association record. What is well-defined is the legislature’s intention that the books be open for the owners, so anything financially related typically gets handed over. Here’s the other thing is if you’re worried about a record that was requested by an owner, you think maybe that record is going to cause the association liability, it’s a bad record. Also contact your lawyer. That individual is going to help guide you as to whether or not it even has to be disclosed or if there’s other arguments that this piece of information might fit into an exception to that transparency. The point is, in meetings if we’re actively focused on communication and transparency, we’re sometimes able to deescalate potential disruptors in advance of a meeting.

Okay, I’ve very rose-colored glasses, so what if proactive communication and transparency just doesn’t work? What if that just doesn’t work? We’re going to share some tools here on this slide that deal with disruptive behavior that happens at the meeting. First, be strategic about the location of the meeting and how the space is arranged. I was working with a client that was planning for a very contentious town hall meeting. The nature of the meeting was just to gather the board and gather the members and share some information about a topic that was really contentious in the community. The way this board typically meets is the board sits on a stage and the owners sort of sit in stadium seating below them, and the owners sit at a long table all facing the same way on a stage facing the owners. The sentiment that the board was getting from some of the disruptive owners was that it was being overbearing, that it was dictating things that it shouldn’t have dictated. 

When I went to meet with the client, I looked at the meeting room and I was like, “Wow, this meeting room has that vibe.” It looks like this sort of elevated official board that’s dictating information, and so what we did for this meeting, we wanted to set a stage for a more collaborative meeting. We set the room in round tables. No one’s on the stage. We peppered the board members throughout the room so that they weren’t together as a board. They were amongst the people as owners, and then we served cookies and coffee. Can’t be mad, we’ve got cookies and coffee, but this change-up really did help deescalate the feeling in the room itself for that, what we knew could be a very contentious meeting.

One thing that can also be helpful is to designate a confident meeting chairperson, so that might be who always runs your meetings. By default, you might have pegged the board president and they’re very confident in their chairing of the meeting, but if you know you’re having a contentious meeting and the person who typically chairs your meeting isn’t that confident personality, you might want to give it to someone else. Maybe that’s the community manager, maybe that’s the lawyer that comes in and chairs that meeting for you. In order to sort of keep control in a situation where you have disruptors in the room, knowing who is doing what and when at the meeting gives you that appearance of organization and confidence.

The other tool is to generally follow parliamentary procedures. I want you all to remember that an extensive adherence to Robert’s Rules of Order, strictly adhering to that isn’t generally required unless your documents require that, but either way, utilizing a format like we talked about before where you introduced an agenda item and you have a motion and a second before board discussion really does control the conversation around action items by the board. Motion, second board discussion, you take that owner comment, and then a vote. The other tip with regard to procedure is really setting ground rules at the top of the meeting. Let’s say that you have a very large membership that’s coming to the meeting and you can only take a few comments from both sides.

You’re going to say that at the top of the meeting, and because you have such a large group, you’re going to limit owner comment to three or five minutes. You want to set expectation at the top of the meeting because if you don’t, I’ve seen people forget. It’s really easy to go into the owner comment period and someone who’s saying something very lovely and supportive, it’s easy to give them 10 minutes. Then, the next person is more critical and maybe they’re insulting, and you don’t want to give them 10 minutes. You have to set that procedure at the top of the meeting so that everyone has the same expectations and that you’re treating everyone objectively.

Our other suggestion is to use the agenda as a tool to move the meeting forward. It’ll help you if you have that available. It’ll help you reference all the good work that the board has to get to in this meeting, the decisions that it has to accomplish. Some people will include time brackets or time estimates for each agenda item. That works for some people, it doesn’t work for others, but some people really do get a benefit from the agenda having timed, so time allocations, that sort of helps everyone understand, “Hey, we’re allocating more time to this topic because we think it needs the more time, and here’s how we’re allocating to another topic.”

Again, remember there’s no reason to debate or argue during the comment section at a meeting. The idea is to receive information from owners. You table the action if you require more research and then, otherwise, the expectation is that the directors are informed by the comment before they vote. Then, finally, our challenge is for the board to model the expected behavior. There’s many times in my experience when the board is desperately trying to get the owners to speak one at a time to maintain a professional decorum. Then, an issue comes up and in the board discussion, the directors start talking over each other and someone touches a nerve, and now they’re insulting each other, and so it really is important for the board to model the behavior that it expects in the meeting from its members.

Finally, this is something that I talk to my colleagues a lot about. Don’t take the bait, so when a comment is made in a threatening or disparaging manner, give it all the time it deserves, which is none. Being reactive in my experience only gives power to disruption, and here’s what I found to be extremely powerful in response. If someone is using their three minutes to disparage the board or disparage management, I just sit there quietly, and then in response I say, “Well, that’s your opinion. We disagree with it. Thank you. Next comment.” It just sort of takes the wind out of the sails instead of engaging with someone who’s being disruptive and it moves that meeting right along.

All right, so this all sounds very hopeful. Here’s some tools that this stuff’s happening in the meetings, our advice to sort of deescalate even before the meeting, but what if you’re really facing threatening or unsafe behavior? What if you fear that something bad’s going to happen at the physical meeting? Our recommendation is that you move that meeting online. The technology is really advanced and everyone is so used to using it. All 88 of us very easily logged in. We’re hearing each other in real time, and so in the event that there is a physical threat, it’s a way to get business done and completely eliminate that physical threat.

I also love Zoom because you control the mute on the speakers. I talked about owners having a statutory right to participate, to witness in these meetings, and if someone’s acting in such a way, you can mute them without taking away their statutory right to observe the meeting. You mute them, they’re still in the meeting. Turn their camera off, they’re still in the meeting. It just gives you those technological controls. I’ve also seen people get really creative with waiting rooms and breakout sessions, so breakout rooms. Depending on your comment of the tech, those can be really helpful.

Otherwise, if you can’t move the meeting into an online platform, our recommendation is involving security, private security or off-duty police officers. I don’t know about you, Ed, but I’ve witnessed folks that come every month and have really bad behavior, and the one time we have the uniform officer in the room, their behavior gets really nice and really polite, so-

Ed O’Brien: Yeah. People tend to observe that security and they behave, and when they’re thinking about not behaving, they tend to look over at security. Not only that, for attorneys, I know it’s really easy for me attending a tough board meeting to get there a little early, befriend the security guy. I see directors do it, too, and it really helps with their peace of mind. Furthermore, security doesn’t know any of this law. They’re just there to keep things safe, so if you don’t feel that it’s safe, you just pull the ripcord and we’ll figure out the law on the back end.

Alexis Firehawk: Yeah, I love that, and that’s a great segue into our last sort of thought in terms of the context of meetings is pulling that ripcord. You do not have to tolerate attacks. You do not have to tolerate feeling unsafe. For the managers on the call, we’ll encourage you to work hand in hand with your companies to know what the protocol is, but you have the tool to end the meeting, and that goes for electronic meetings as well. If you find yourself that we just don’t have control over it, like I said, sometimes those bad actions, those heated emotional responses are coming from our own directors, you can end the meeting and we can gather ourselves and start again. Yeah, that’s meetings. Let me take a couple questions before we move on to social media. Andrea, do you have any good questions in the chat for me?

Andrea Rizen: We don’t have any right now.

Alexis Firehawk: Well, look at that. Just covering everything. Oh, thanks, Ed. I see your response to Diane.

Ed O’Brien: Hope that was helpful.

Alexis Firehawk: Such a good team. All right, so another situation where disruptive behavior occurs is social media. Again, if we’re being proactive, if we are focusing on communication and transparency, we’re going to talk about proactive strategies in that regard. I’m going to pause, though, because I saw something pop up from Gretchen. “Can we ask the offending person to leave or do we have to adjourn?” Gretchen, that’s a great question. You can always ask that person to change their behavior and leave.

The pickle that we get into, and this is what Ed was referencing, is that statutory right for owners to come to meetings. They don’t have a statutory right to come and harass everybody. They don’t, but it’s tough in those live moments to sort of draw the line like, “Okay, if I have security escort this person out, am I then exposing the association to liability because I denied them their rights to participate?” Voluntarily leaving is a whole different game, so Gretchen, absolutely, you can ask that person to leave and, frankly, you can tell them what the consequences might be. Ed, did you have something to add?

Ed O’Brien: I think that’s great. Asking someone to leave that is absolutely something you could do now. Yeah, people like to argue and a hostile person might fight back on that. One thing we just want to make sure is you don’t have to escalate by asking them to leave. Just be polite, and if their response is something horrifying that it really amounts to a no, just take the no and try to move forward depending on what your situation is.

Alexis Firehawk: Yeah. All right. Back to social media. Okay, so the difficulty with social media is that there are lots of pros and there’s lots of cons. We love social media because it’s a more common real-time way to communicate. The problem is the lack of control, which is why it’s a more common real-time way to communicate. While social media can help facilitate communication between neighbors, I mean, I feel like every single client I deal with has a Nextdoor account, so it can certainly help facilitate communication between neighbors. I see beautiful stuff on the Nextdoor account in my neighborhood about, “Hey, I’m selling this thing for really cheap,” or, “Can someone shut my garage door?”, or, “Hey, are we doing this thing in the park?” That kind of communication is great, but it can quickly turn into a space filled with misinformation and insults and slander.

Again, it really is the lack of control in social media that comes from the fact that it’s a space that you’re holding that others can just simply post to, and it really is difficult to apply objective standards when you’re deciding what gets to stay on and what gets deleted or blocked. How do you draw the line between something I just don’t like, I disagree with, and something that maybe is objectively offensive or crosses the line? One productive way that some of our clients use social media is to use it to just monitor what folks in the neighborhood are talking about, interpreting it as a window into what they care about. Then, monitoring that social media, taking the issues and bringing them to the association’s web page or doing email blast updates or newsletter articles. Really targeted responsive information about the issues that obviously the community is finding to be important, but doing it in a response off the social media and in a more controlled environment.

Again, what if proactive communication and transparency doesn’t work? Here are a few tools to deal with disruptive behavior over social media. Again, the question we get is whether or not the board should engage. “Should we comment? Should we engage there?” As I mentioned, liability is limited by staying in forums where content is controlled. If you can control it, you can limit liability, but if comments are being posted that are untrue or insulting or accusatory, and we have clients that want to respond, want to set the record straight, they’re afraid if they don’t respond it looks like they’re admitting something.

Typically, our limited response would be something along these lines. You would post in response, “This statement is untrue. Please refer to the association’s web page or attend the next board meeting on such and such a date to get correct information. See how that’s different? You’re responding, you’re saying it’s untrue, but then you’re driving the comments to a more controlled environment and you’re not engaging with that individual in a forum that you have no control over. Lastly, if you make the association’s web page attractive and usable and useful, the hope is that more people will find it to be a resource. That’s what I got for social media. Let me pause and see, do we have any questions about social media?

Andrea Rizen: We do have a question. “What if the disruptive person is a director on the board who constantly causes animosity and argumentative behavior in board meetings?”

Alexis Firehawk: Yeah, that’s tough, so-

Ed O’Brien: [inaudible 00:28:36]-

Alexis Firehawk: … the same apply. Yeah, go ahead Ed.

Ed O’Brien: … yeah, yeah, that can be real tough because we’re not… As attorneys, if Lex or I are there, certainly we could address that situation, but we’re not at most meetings. We hope a property manager could do that, but we don’t expect that. That’s not necessarily what every manager is going to do. I’m going to emphasize every situation is unique. In that unique situation, you’re probably going to want to consult with counsel, and the reason I have to conclude that is not just because I’m counsel, it’s because you have a board of directors doing the business of the association, and if there’s any risk to that corporate entity coming from within its board, consulting with counsel is a quick way to assess it and figure out what that risk is. Disruption at meetings could be a risk.

Alexis Firehawk: Absolutely. The other thing I’d say a proactive approach is board training. I have found it very effective when a manager is asking for board training for a board for that specific purpose. There’s something very specific going on, and I’m able to craft objective learning points in board training that creates this very hypothetical situation that everyone can sort of air out and talk about and work from. Then, also to Ed’s point, sometimes having a conversation with the lawyer and the director to let them know that certain activity might bring on personal liability, those types of conversations. I’ve also found those to be very effective. The answer is yeah, if the issue really is coming from one of the elected directors, get your legal counsel involved and maybe some proactive training can help. All right, I am going to pass it over to Ed to talk about our options when someone crosses the line.

Ed O’Brien: Thanks, and that was a perfect segue into talking about defamation because that’s the kind of liability that can come from a director who may have said a false statement. We’re going to talk about what defamation is, and hopefully I’ll be able to even address the question that just came in about folks who just say things that are wrong or harassment, but we’ll come back to those questions soon. For defamation, defamation is a legal case with certain elements under Arizona law, and those elements are right before you. The false statement is the key. A true statement isn’t defamatory, and lawyers, law students, they play with the facts to come up with hypotheticals, but I think I can explain it here. If I say, “The sky is red,” that’s just a false statement. It wasn’t really defamatory, it wasn’t really about anyone.

I say, “The sky is red because Joe is embezzling,” well, now, I’ve said something that’s false and defamatory, and that’s the kind of statement that can be defamation. If I were to say, “The sky is blue, but Joe’s evil actions are going to turn it red,” now, I’m just making a dumb opinion. That wasn’t a fact. I said something was evil. I go through these quickly. These kinds of discussions can be quite lengthy if you really dig into defamation. The key I want to emphasize is false and defamatory. Defamatory is negative. No, positive comments don’t bring lawsuits. If you were to say something falsely positive about somebody, they’d probably politely approach you as opposed to suing for defamation.

Publication is part of it. Publication can be lots of things. Arizona case law is where this comes from, and just to back that up, case law is where we get the contours of defamation law in Arizona because it doesn’t flow from the statutes. It’s a common law cause of action, a tort, and the folks who practice plaintiffs defamation law are a lot of the same folks who advertise for personal injury stuff. When with the alleged publication, we could be talking about libel, which is written, or slander, spoken. Written publication that case law defines very broadly, and that’s why I wanted to emphasize the case law allows claims for emails, notes that get published, meaning to audiences.

That’s not common, but the kind of thing that I want to discourage boards from disseminating. Maybe putting something that shouldn’t be in the minutes that’s false and defamatory. Social media posts can be defamatory and is an ever-increasing source of plaintiff’s attorneys filing for defamation with postings, flyers, text messages is hard, but you can certainly see a case forward in a group chat, for example, as being a publication and slander comes to an audience. These are all arenas in which folks working with community associations are going to communicate, and if they publish, as I just described, all the kind of things that could be, a false and defamatory statement, we could have satisfied two of those elements of the defamation claim.

I put the fault of making the statement with negligence. Only a lawyer could love that sort of summary. What I’m really meaning there is you don’t have to know the statement is false or purposefully say something false. “I’m going to lie about Joe.” Rather, negligence is the standard and it applies to the truth or falsity of the statement. If I make the defamatory statement, “Joe is embezzling,” I don’t really know if he’s embezzling. I was just negligently saying it. Or maybe a hint of sarcasm that didn’t come out that nobody took. Well, that’s a negligent standard and it could be subject to a defamation claim. I’m emphasizing this so that you understand that the intent to defame doesn’t really matter and damages, it harms somebody.

We’re going to talk a little bit about what that means, but it can mean emotionally, harm their business, harm their reputation, or sometimes it can just mean they just want the court to award damages as punishment, punitive-style damages. The plaintiff has to have some damages, and that gets you a defamation claim. Let me et back to that negligent falsehood because that’s where I think a lot of the discussion or worry about defamation comes from. Saying things that others call misinformation, disinformation, falsehood, whatever, that the person making the statement doesn’t think so. I want to emphasize, first of all, we’re talking about fact, not opinion.

Opinions are not subject to defamation. If it is my opinion that Joe is embezzling, my little caveat it’s my opinion might not be enough to stop me from getting sued, but if it’s my opinion that Joe has a little more money than maybe he should, that sort of subjective should, that language is what I mean by opinion, and opinions not being subject to defamation. It’s important to distinguish when we’re communicating in an official capacity what we’re saying are the facts and what’s opinion. It’s very difficult because that is so muddled in all areas of our current culture, what’s a fact versus what’s an opinion. Very frankly, it’s very often a gray area, so we’re all out there doing our best.

What I’m emphasizing to you is be very clear about what’s an opinion versus what you’re saying, “This is a fact, this is true,” if that thing might harm somebody or be defamatory towards somebody. Words can have different interpretations. If the board were to say a candidate for its election committed fraud as opposed to that candidate acted fraudulently, those statements aren’t very different, but whether they’re opinion or fact could certainly be argued very differently. Be careful and be reasonable because at the end of the day, this negligence standard is reasonability. Lawyers joke the word “reasonable” makes the legal word go round because it’s kind of true in the sense that that’s what juries decide. If you’re sued for defamation, the reasonability of the statement is the heart and soul of both sides of the case.

Make sure that there’s knowledge, yeah, well, let me put it differently. Truth and opinion are defenses. If you can prove the statement was true, it’s not defamation, but that’s the kind of thing you have to convince the jury. If you prove the statement was an opinion, again, if a jury agrees, that can be a defense. When I emphasize what you can always say, you can always say or folks can always say what their opinion is or things that they know are true, or reasonably know are true. I cannot prove to you on this Zoom that the sky is blue, but nobody’s going to sue me for defamation for saying it because it’s commonly and reasonably known to be true.

What about publications? I want to emphasize with publications of these communications, when you send an email, remember it can be forwarded. Forwarded emails can expand the publication of a defamatory statement to a larger audience. That may not enhance the defamatory nature of it, but it could certainly be a way to enhance the damages claimed, and to that end, compounds the negligent. The negligent statement suddenly becomes a big claim for damages. It’s important to make sure that statements are true when they’re even disseminated by email. Remember the texts can be screenshotted and published. You don’t want to be in the scenario where you’re arguing, “I didn’t publish it, it got forwarded,” because at that point there’s a claim. Remember that flyers and posters and electioneering can be publication as well.

Let me turn to defamation damages. There’s two types I want to talk about, actual and punitive or per se damages. Actual damages are going to be the kinds of things that people can prove with evidence or documentation, and they can look very differently. Lost business could be tied to reputation or the outcome of the defamatory statement, and it can be proven in a lot of ways and people can get creative. Emotional damages are available in cases like this. I put treatment and emotional next to each other, but you can see if somebody was so upset that they sought mental health treatment, they could claim those as defamation damages. If somebody had to travel to a facility or had to leave their community, they can start claiming those things as actual damages.

I’ll warn you also about punitive damages, defamation per se. Proving up a higher standard of malice with the false statement made with intent can result in a jury instruction providing for defamation per se damages. These are lot like punitive damages. Punitive damages are the kind of damages that are available for a jury to award as a punishment. They are to discourage the bad conduct. Really, they are just not based on actual medical, lost business, the things above, but just to discourage the conduct, and they are available in defamation cases. The jury instruction is somewhat boundless and it can be very hard to settle these claims because they’re not grounded in evidence that we’re examining. 

Finally, on defamation, I want to talk about owners and directors, how we see these claims. Corporate defamation is just rare. This is the HOA alleging defamation, and why is that? The key here is that defamation doesn’t provide you an avenue to undo the post, take it down from social media, make the statement that the owner made that’s false go away. Unpacking or undoing the statement can’t happen through a defamation case, so how would an HOA be damaged? It’s just rare and hard to find actual damages for an association. As a nonprofit corporation, those damages are probably the actual damages in most cases. We can think about per se, but at the end of the day, even if per se damages punitive are available, remember it’s an HOA and juries tend not to like HOAs. We don’t often think of defamation from an HOA plaintiff’s position, but what about the individual directors?

These people do often complain about defamation from the things people say about them, whether it’s related to their service on the board or just next ancillary to it. Those personal claims can be tough because really that individual needs a plaintiff’s attorney. Our firm provides corporate counsel to the association, and we can certainly talk about these claims. We defend them after all, but the individual person’s defamation claim is very unlikely to be covered by the governing documents. They’re a part of what the CC&Rs authorized the association to do, and there are legal distinctions there between these kinds of claims and the contract claims that come from your CC&Rs.

Certainly, we’ve talked about it with our clients and we tell the advisors are always going to be specific to that case, that person, but generally speaking, they’re going to need to talk to a plaintiff’s attorney. The other side of it, defamed owners. We get a lot of the complaints by owners. They’ve been defamed. They’re the likeliest plaintiffs that are going to involve the community association in a defamation claim, and it’s important because the defendants can be the community association, the manager, the individual directors. It’s another reason that all of these individual people should be very careful not to make statements of truth or statements of fact that may not be true.

On the other hand, those plaintiffs can be just about anyone, whether it’s the members, the contractor, the resident, tenant. At the end of the day, we want the HOA to be a witness. If there’s a defamation claim, meaning it’s not part of the lawsuit in a community association. What do I mean by that? I mean the HOA doesn’t make a statement whether it’s silence or whether it’s saying, “We’ll get back to you,” or any number of the things we’ve talked about earlier on in this presentation. Liability, though, may not be indemnified. What do I mean by that? I mean if a director is going out and causing defamation and actually says something that there’s going to be some defamation liability for, you’re going to need to check with that association’s specific governing documents to determine whether that director is indemnified. Indemnified, that means whether they are provided a defense by the association or on their own. Very important and it will require a legal opinion. 

The bottom line on defamation, you need a statement that’s false about a fact published and harms somebody. Avoiding all of those can be pretty easy, but when there’s a question about something, just don’t make a statement or run it by counsel because most often when there’s a question, the statement’s already been made. I want to turn to harassment. Harassment’s a little bit different. Harassment is part of a statutory scheme provided by the Arizona Legislature with its own procedure and law. I got to start with two disclaimers on harassment, and I won’t take up a lot of time on this subject.

The first disclaimer, I talk very flippantly and nicely about things that are very difficult, and I’m sorry if any of you have been through any of this, I’m not trying to be dismissive of it and just like this is no big deal. This can be really gnarly stuff, and to that end, I encourage you all to seek out legal or other counsel as needed. Disclaimer number two, if at any time there’s a harassment situation that risks safety or in any way makes it appropriate to call police, do call police. Calling police is not only the best recommendation practically speaking, but it’s going to make evidence if you do have a harassment case on your hands. We don’t always know you have a harassment case on your hands when it starts, so calling police is the best thing to do.

These statutes that I provided here, 12-1809 and 12-1810, these are the two that we use the most for community associations, but they’re not the only protective orders. There’s some in criminal and family courts. Some folks may have experience with those and these would be the ones I’m talking about are very similar to those in terms of procedure and what the courts do, but they do follow these two specific statutes, and that’s the way we approach them and the way I’m going to present them. It’s not a CC&R’s issue, though. If you have provisions about harassment in your governing documents, that’s a civil matter that needs to be addressed under those documents, and you have to file a different kind of claim.

These ones specifically flow from the statutes, not the CC&Rs. Indeed, you can’t bring in violations or breaches of the CC&Rs as evidence of harassment, and we discourage violations of CC&Rs as allegations of harassment unless it’s absolutely important background to the harassing acts. To the contrary, you sometimes have to work around the CC&Rs. I’ll give you two quick examples. We have had board meetings where somebody filibustered, interrupted, disrupted, every meeting got off the rails. There was a Zoom option and the court granted the injunction against workplace harassment telling that person they couldn’t attend the meeting except by Zoom where the association controlled the mute button.

On the other hand, we had a board meeting where somebody was circulating a petition for removal and making comments while doing so. Well, a petition for removal is protected by both the Condominium and Planned Community Acts. That’s something that owner’s allowed to do. That’s not harassment. That’s working around the CC&Rs, and it can be a case-by-case analysis, but generally speaking, you got to comply with those on top of the harassment, but you can’t get to harassment through the CC&Rs, and it comes in many forms. We see harassment happen at board meetings, management offices, threats in writing are on the phone, interfering with contractors, or even behaviors on the common areas.

What do we do? We go to get an injunction against harassment. What is that? That is a court order for somebody to have no contact. When it’s the individual one, the first of the two statutes, it’s between two people. Person A cannot be contacting person B. I should say defendant cannot contact plaintiff. For workplace, it protects a business, a location, employees. That distinction is in the statute. When we explain it to our community association clients, it could impact them a little bit differently, but generally we’re talking about some place like the office, the common area, or the board meeting, and the employees, which is defined very loosely here.

This is not an employment law analysis at all. Much like the CC&Rs, that takes a step aside and we look to the definition within the statute itself. It allows us to include lots of people as employees of the business in this context, whether they be directors, volunteer committee persons, managers, or the landscapers. We did have an injunction granted keeping someone off the common area because every time the landscapers went out, do their work, the person was trying to interfere with them and stop them because they disagreed with the landscaping.

It was also an example of how we had to keep that HOA business out of the case because it was the interference with the reasonable activity repeatedly that allowed us to get that injunction. Now, even if you have an injunction in place, what do you do with it? You have to call police, so that’s why a call to the police is just consistent advice on these. There’s just no other thing to do with it. There’s no HOA action under the CC&Rs to take on these, no violation report later or referral to the court saying, “Hey, they violated.” The only consequence is you call the police, they respond, and if the person’s violating, they criminally charged by that officer. Moreover, you can call any law enforcement officer in the State of Arizona at the county sheriff or the local city level. Some other folks like Capitol Police may even be able to respond in an emergency, and emergency call police and you can use 911.

Now, to get this injunction, you have to go to court. Again, you have a lot of options. You can go to any municipal, superior, or justice court, and we certainly look at all those options when we’re working with our clients on where to file. You got to file in writing and then see the judge at that court, and there’s just no other way to get an injunction against harassment or workplace harassment. Sometimes you even have to do more than one hearing at the beginning, and we talk about that here in a moment, but first, what is harassment for these protective orders? We have to have a definition of what is harassment before we write out that petition and go to court.

First of all, you need a series of acts, and that’s always going to mean two or more. We can sometimes separate out two things happening on one day, for example, but you need to show the court that there is more than just one incident, with an exception of workplace harassment, protecting businesses, there can be one threat of physical harm. What’s a threat of physical harm? Well, threats are subjective and judges have a pretty high standard on this specific physical harm issue because we see a lot of harassment is threatening a legal consequence or threatening a political consequence, but physical harm, property damage, or violence, that threat is harassment, and in workplace context can get the injunction.

Firearms, here is an example. We’ve had a judge consider it a threat of physical harm just when somebody brandished a firearm without words or any specific threat. The mere brandishing in the wrong context, that was uncommon area. That’s part of it. It was enough. Also, they have to intend and actually cause the harassment. The statute, it’s annoying. It’s self-defining. It defines harassment with the word “harassment,” but the alarm, annoyance, harassment, it can’t be accidental, and the annoying action has to actually annoy the person. If the person says afterward, “Oh, I didn’t care, that was no big deal,” it may not be harassment.

We’ve had one where a person was behaving so badly at a pool by not following the rules, breaking glass, insulting third parties, a court did grant that injunction after considering the gravity of the conduct that was just designed to alarm and annoy people. There was no other purpose because it actually did, and it actually disrupted the pool, and which segues into business activity. Interrupting business activity, the landscaper’s example I just gave you, is an example of workplace harassment. There’s also no reasonable purpose. It’s another part of the definition, so voicemail bombs we have gotten enjoined. We can go to court to say, “Look, this person, this owner has nonstop telephone-called all these people and filled their mail boxes and we can’t do our work.”

On the other hand, multiple very mean and nasty calls that all attack an HOA purpose may not get you the injunction because the person could say, “I had a reasonable purpose. I needed that HOA thing done, and it may be rude, that’s I’m rude.” A judge could say, “Yeah, I’m not going to issue an injunction, or I’m going to quash one.” What I emphasize the most, though, is there’s a lot of complexities here, so if you have not-so-clear or cut case, a conversation with counsel is certainly appropriate. I’ll run through quickly how to get the injunction, even though it can be a long process if you have a complicated case.

You need to gather all of the party’s information. That’s an aggressive dive into the contact information of plaintiff and defendant. You’re going to need things like dates of birth or estimated dates of birth. It’s just part of the forms. These forms are online. You have to do it through that court platform. It’s at azpoint.gov. I don’t know if that’s an exact URL, but if you Google AZPOINT, I’m sure you’ll find it. The most important part of this petition is getting the dates and descriptions right. You need to name the day and what happened. When we work with our clients, we’ll go through to make sure all of those elements of harassment are addressed, but the thing about this is it’s your whole case. You go back one year to find all the dates and descriptions you can because once you serve this and they might contest it, you’re limited to what you put in these dates and descriptions.

That’s the whole evidence of the case, so we recommend a very deep dive and comprehensive list. Know your witnesses and evidence before you go, although at the beginning when you’re writing a petition and doing your first hearing, you generally don’t need it all. You just want to know it because there’s a quick turnaround here because once you file that petition online, you’re going to get a confirmation number that you just take to the court, and you’re in court before a judge on that petition by yourself. The other side hasn’t been notified yet, and that’s when the judge will first decide whether or not to issue the injunction or have another hearing.

We’re seeing a lot more about that where the court will just schedule its own next hearing and then you come back and prove it up again. In any event, once you get it, you have to serve it. Our office will give it to your process servers because they’re very fast and affordable, but you can give it to a law enforcement officer, whether that’s sheriff’s office or the city police. Another thing you can do with these, we always give our client a copy when we’re leaving court because if the harasser comes back before service can happen, you still call the police as if service had happened, and the responding office may not be able to arrest them. Service hasn’t happened, but they can serve them. It’s a unique part of the procedure, so you may not get an arrest, but you still get service from an officer, which often meets the goal, which is to stop the harassment. 

With the HOAs, workplace harassment, a few things to think about. I want to emphasize the definition of employees allows us to get all those folks, which I mentioned earlier. It matters tot he harassing acts and who’s protected. We want to figure out in the workplace harassment context where the business is protected. We’re going to emphasize who are the employees, so it’s important to figure out who is actually being harassed, not so much who are all the people we can possibly name just because we have a broad definition. You can’t end run an individual injunction, so if, for example, one of the landscapers very specifically is being harassed, and it’s just because of something unrelated to the association, you can’t use a workplace injunction to make the HOA try to go get it to protect them when it’s really just person-to-person.

The protected places is something to think about, too. You can restrict common area, but not a hundred percent. These folks have easements in most cases. Similarly, board meetings, if you only have an in-person option for a board meeting, it’s hard to stop somebody from attending because the statutes for harassment injunction specifically prevent the court from cutting out another statute. We work with our clients on these things by setting up records request protocols or board meeting protocols in order to get around these Planned Community Act and Condominium Act issues, and we’d encourage that for our clients who might have to deal with getting around them if the harassment is occurring through records requests or at board meetings.

Speeding a little bit ahead to my last slide, I just want to mention insurance defense for harassment. Sometimes our directors are defendants. Angry homeowners will go get one of these against architectural committee members, directors, managers because they’re mad about something. We do often find that insurance polices for the associations can cover these and defend them, and we help our clients do it. We’ve done quite a few very successful, mostly because they’re usually really bad petitions. Of course, they’re not real harassment. Let us know if we can help with that or if your governing documents may indemnify that director. In some cases, the indemnity provisions of the governing documents may provide for the association to provide a defense even if insurance doesn’t drop down. Something else we can look at.

Finally, contact us if there’s any accommodations before, during, or after harassment, whether it’s setting up a new meeting protocol, new meeting rules, speaking limits, what to do about these hard cases that won’t accept your de-escalation. At the end of the day, I keep saying you may have to turn it over to counsel. That’s what we’re here for. These are tough situations. Turning into the chat, I hope I can answer the questions that may have come in.

Alexis Firehawk: And we-

Ed O’Brien: Unofficial website news, yeah, an example of not knowing all of the facts, if somebody’s running a website that’s defamatory, you can certainly talk to a lawyer about suing for damages. What I caution is it’s hard to shut down a website because you don’t get to an injunction through defamation.

Alexis Firehawk: Ed, we’re right at 1:00, so Andrea is going to go through our chats, and for those of you who we didn’t respond directly to, she’s going to gather your question and we’ll send you a note right back with some further guidance based on our presentation. I know our presentation is also being recorded and it’ll be available on our web page. Thank you all. Ed, do you have any final thoughts to share?

Ed O’Brien: I appreciate everyone bearing with me as I sped through. Like I said at the top, you know how us lawyers love to talk.

Alexis Firehawk: Yeah, it’s great content. We really appreciate you being here with us today. We’re happy to assist you with these difficult issues and also support you in trying to be proactive around these times and, yeah, happy birthday one more time to James and Chad, and we’ll see you next time. Thanks, everyone.

Ed O’Brien: Thank you all.