By Michelle Tomko
If you have ever served on an association board, you know that nearly any situation, regardless how minor it may seem, can become political. In associations, political factions have been born over such issues as what color to paint the clubhouse card room. If that isn’t bad enough, communities also need to deal with their own town politics – which can affect residents in an association. Whether it’s new construction of a café or ball field that affects quiet enjoyment, or a potential danger to the community due to a variance or change in traffic rules, to a heated political campaign that can be divisive, communities are faced with challenges brought by their local governments. Although associations are their own entities, they are certainly not like islands, completely separate from their municipalities.
But with so many personalities and opinions in a community association, how involved should one get? Should associations communicate opposition to political situations if they feel there is a possible detriment to the community? According to Stephanie Wiegand, an attorney with Griffin Alexander in Randolph New Jersey, there are typical situations that cause this question to arise.
“What normally comes up is the association or their individual homeowners or management will receive a notice in the mail from the local planning board or zoning board. It’s usually because they live within a certain distance from where something is going to be happening,” she said. “They need to receive notice so that they can come [to a hearing] if they object.”
“The most common scenario I’ve seen is something like a new development going in next door. Usually the association will contact us. We try to do some background investigation before the association takes a stand as to whether or not they want to oppose it, and how they want to do so,” said Wiegand.
In Wiegand’s experience, a call to their city or town council is the most prudent approach. “I don’t usually see associations that go directly to a town meeting and start kicking and screaming. I say the best avenue is contacting your attorney and contacting the clerk’s office to get more information on whatever the proposed development is that is going to be affecting you. Reach out and monitor the situation as opposed to walking in and starting a coup at the township meeting,” she said.
Municipal elections, of course, can also affect communities. Should associations go as far as making political contributions to gain favor with one or more candidates? “I would not recommend that,” said Wiegand. “Associations all have a board of directors or a board of trustees. These are people who are elected by the association members to represent them and their interests. So whatever decisions the board makes or whatever statements the board makes, they have to remember that they are speaking on behalf of the association,” she continued.
“They are allowed to speak individually on their own if they support a political candidate or want to make a political contribution. But they need to be very cautious that they are doing that in their own individual capacity and not as a political statement on behalf of the association.”
This is certainly food for thought as far as future dealings with local authorities. “You shouldn’t be taking stands like that as a board on behalf of an association, said Wiegand.
On this note, should associations even host political candidate forums? “I think it’s dangerous to do. Associations are not political entities. They should be neutral when it comes to local politics. I think that’s the easiest and most careful way to go about it,” she said.
“If you are going to have some kind of open forum, or ‘meet the candidates night,’ or invite them to the community for a meet and greet, then I would at least think that should be open to whatever candidates are running to allow anyone the opportunity to come,” said Wiegand. “But that’s where you run into an issue. What if two out of three candidates can meet with the association but the third one can’t? The association is going to run into issues with that,” she cautioned.
“There is some case law with regard to whether you need to allow candidates on their own to come and solicit,” said Wiegand. “There’s those types of cases out there.” She suggests associations proceed with caution if they are only having one political candidate visit their common area.
“I have a concern about an association actively backing one candidate versus another, or actively holding a networking event to promote one candidate. To allow candidates to go door to door is one thing. But actively throwing your support behind a certain candidate, that I would caution against,” she said.
In deciding how far to go, should associations prevent residents from meeting with politicians or holding political functions in common areas? “An association may be allowed to regulate what can be held in its common areas. I can’t give a definitive answer because it depends on what type of event they would want to be holding and who would be there,” she said. “You have to balance that with the equities of a person’s right to their freedom of speech versus the reasonableness of an association to control the types of events. It’s a whole balancing act. You have to look at your own specific rules,” said Wiegand.
But that’s the common areas. What about what association members do inside their dwellings? Wiegand said emphatically that “you can’t regulate what they do in their homes.”
Can or should associations form political action committees (PACs) aligned with their best interests? “I would again caution against that. Individual board members or individual homeowners themselves can volunteer for a person’s campaign. They can go and do whatever they want in their own individual capacity. But you shouldn’t be saying ‘the HOA supports this person,’” she said.
Wiegand suggests a different approach to voicing an association’s support of an individual. “Instead show it by getting the numbers. Numbers speak volumes! Say instead ‘I’ve got one hundred fifty unit owners who support the candidate.’ I think that is a safer route,” she said.
Can associations regulate the display of political signs or pamphlets? According to Wiegand, each community will differ based on preexisting rules. “You have to look at an association’s individual rules and regulations.”
She used holiday decor as a parallel. “You can’t limit, for example, American flags. Everyone is allowed to hang American flags, and seasonal decorations are usually allowed during certain times of the year,” she said. “You can limit the time that seasonal decorations can be up or where they can place it. For example you can’t put any signs on common property or nail one to the siding or your front door — because the siding is something that belongs to the association. It’s the association’s responsibility for maintaining.”
But again, the inside of the home can get a little tricky. “If it’s going to be on the inside in your window, and you are only keeping it up during the political campaign season, that may be considered reasonable. If an association has some incredibly restrictive rules, that may be considered by a court to be too restrictive. So they can limit location and time frame of things that can be hung up. You can’t limit a political sign unless it is threatening or in some way inappropriate. You can likely be able to limit where is goes and how long it’s up for,” she explained.
Finally, Wiegand was quick to explain that the rationale behind this isn’t arbitrary or meant to be unfair censorship. “Associations have certain rules and regulations in place already so they can keep the uniformity of the community in check, so everyone has a nice place to live while also being able to express themselves,” said Wiegand.