Welcome to Ungated

On November 13, 2007, the Federal Communications Commission (FCC) issued an order confirming an October announcement that the agency would ban the enforcement of exclusivity clauses in existing video service contracts. An exclusivity clause is a contract term giving a provider, usually a cable company, the exclusive right of access or the exclusive right to provide video service in a community.  The current order effects only video services, but the FCC noted that it may consider similar issues related to phone and broadband services in the future.

For many associations, such exclusivity rights have been part of the inducement to encourage cable suppliers to invest in the infrastructure to reach communities beyond their normal service area.  At the same time, many associations and homeowners feel constrained by long-term contracts, created by their developer, that outlive the development process.

You can find out more about this order and how it may effect your association or your clients on CAI's political and legislative "Heads Up" page.  We have prepared a brief overview of the order, along with some basic questions and answers. 

I am sure that there will be more to come on this issue.  Right now, it appears that a number of other organizations here in Washington will likely be filing a court challenge regarding the FCC's authority in this matter and may be seeking an injunction to prevent enforcement until such time as the legal battles are complete. 

What is most interesting about this situation is that the FCC looked at this issue under its previous chairman and concluded that it did not have the statutory authority to regulate this issue.  Under its current chairman, that opinion has changed and they have now concluded that they had the authority all along.  As a result, this may become a test and determination of the FCC's overall authority under the Telecommunications Act of 1996, which has the potential to have impacts well beyond the limited concerns regarding contract exclusivity.

CAI's annual Law Seminar, sponsored by the College of Community Association Lawyers, brings together leading attorneys along with management, insurance, accounting, and other executives from all across the industry to explore key issues, legislative initiatives, and other related topics. 

Each year the Wayne Hyatt Lecture Series is the central event at Law Seminar, bringing nationally renowned speakers on critical topics.  This year CAI and the College are proud to present Dr. Martin Regalia, PhD, Chief Economist for the U.S. Chamber of Commerce.  Dr. Regalia will discuss the many challenges currently facing the U.S. economy and his expectations for the future in his presentation:

Passing Cloud or Gathering Storm? Mortgage Meltdown, Foreclosures and the Economy

Check out our Law Seminar page for more information on Dr. Regalia's presentation, registration, accommodations, etc. 

And as part of our "green" initiatives program the upcoming Law Seminar is going paper-less - no more bulky handouts to lug around. In order to reduce our environmental footprint, CAI will only provide copies of the outlines and PowerPoint presentations on-site. Attendees will have access to all session handouts, samples, and other reference materials submitted by content leaders in advance on the website and during the seminar. Attendees will continue to receive all materials on a fully searchable CD-ROM at registration.

As the Santa Ana winds lessen and give firefighters their first chance to gain ground on the wildfires ravaging Southern California, we have a chance to see what makes us great.  It isn't the massive integrated government response with federal, state, and local agencies pouring enormous amounts of money and personnel into the area (although that is absolutely critical), but it is our communities and our individual expressions of support and assistance. 

It is the individuals bringing food and water to Qualcomm Stadium for the evacuees being housed there.  It is families opening their homes to others.  It is neighbors checking up on the safety of neighbors, and helping them dig out when the time comes.

This is what makes communities great, that no matter what the disaster - hurricane; fire; earthquake; or terrorist attack - we will step up and be there.  Individually we may or may not have much in common with those in need, but Americans always recognize the need first and are there with a helping hand. 

Throughout California, CAI chapters, members, and our Legislative Action Committee, are working to assist those who have been displaced and the communities that have been damaged.  CAI has also developed a comprehensive Disaster Recovery page on our website which we have updated to include specific data related to the California fires.  In addition to information and assistance for those who have suffered direct losses due to the fires, it also contains information for those who would like to help those families and communities directly effected.

I have already heard many stories about individuals and communities reaching out, but I always like to hear more.  If you have a story about your family, community, or company and how they contributed to the effort in this massive evacuation and recovery process, I would certainly like to hear about it.  Just click on the comment button below to share your experiences.

You can’t open a newspaper or flip on the television without seeing a story on global warming, environmental concerns, or energy issues. In recent weeks, reporters have latched on to the “right to dry” movement, pitting HOA rules against those residents who want to conserve energy by hanging their laundry on clotheslines. Regardless of your political affiliation or stance on the issue of global warming, I think we can all admit that we could be better stewards of our planet and our, ultimately, limited resources. 

 

And while each of us as individuals can contribute to conserving energy and reducing pollution in a number of ways, communities working together can do even more.  And many have already begun to do so.  Across the country, communities have implemented water recycling and reuse systems, energy management plans, and even green space/wildlife conservation initiatives.  Nor is CAI new to these issues. Several years ago, the Foundation for Community Association Research worked with the U.S. Department of Energy to publish Energy Efficiency, a free best practices report explaining how homeowners and associations can reduce energy consumption and costs.

 

So we would like to hear your ideas.  How has your community taken steps to manage resources more efficiently and reduce your environmental footprint?  What has worked and what hasn't in your community?  How have you gotten your residents engaged in the process?  How have you partnered with government, schools, or other groups?

 

Just click on the comment button below and share your stories.

 

Everyone knows that there are tremendous career opportunities in community management and the community association industry across the country.  In fact, one of the biggest challenges facing management companies is their ability to identify, qualify, and hire experienced and knowledgeable managers.  Now those companies and job seekers looking for new career opportunities have a new resource—CAI’s  Job Market, a comprehensive, user-friendly website dedicated exclusively to the community association marketplace. Job Market is part of CAI's on-line Career Center, which brings together a variety of job search and career development resources.

 

Job seekers can post their profiles for free—and they can be reviewed by anyone at no cost. While the site focuses on community management, attorneys, accountants, bankers, and other industry professionals can also post profiles. Job Market allows job seekers to post profiles for free, enabling individuals to stay connected to the employment market, while protecting their identities and maintaining control over their confidential information. As an added bonus for job seekers, Job Market provides an advanced job-alert system that notifies candidates of new opportunities matching their specific criteria.

 

Employers can access profiles for free. If a recruiter or employer wants to access a full resume, that individual must provide permission. Only then does the employer pay a small fee. There is no cost to the job seeker, who maintains complete control over who can see his or her resume.

 

Employers who are members of CAI can post a specific job opening for only $195 for 30 days. That’s considerably less than the cost of generic job-search websites, newspaper helped-wanted listings or professional search fees.  Non-member pricing is slightly higher.

 

And as a special introductory offer, job openings posted by March 1, 2008 will remain active for 60 days, instead of the standard 30.

 

Congratulations to CAI's Orange County Regional Chapter on their 30th anniversary.  I had the pleasure to attend their 30th Anniversary Luncheon earlier this week and celebrate with over 325 chapter members.  More than 20 of the chapters past presidents were also able to attend this event.  Congratulations and here's hoping for an even more successful second 30 years.

With the flu season rapidly approaching, we are once again reminded by the CDC and other medical authorities that a flu shot can help reduce the incidence of and the effects of this potentially life-threatening disease.  Each year as many as 60 million Americans contract influenza, more than 200,000 are hospitalized, and about 36,000 die from its effects. (Source: CDC)  For more information about influenza consult the CDC's  Influenza Page, the Pandemic Flu page, or your personal physician.

As a service to our members and their communities, CAI is partnering again this year with Care Dynamix to provide flu vaccination clinics at your community or business, saving your residents and employees the need to stand in the long lines common to most public flu shot clinics or to schedule a visit with their individual doctors.  For the same price you would pay to go receive a vaccination at a doctors office or a public health clinic, Care Dynamix brings the service right to you in your community or office.

Check out our website for the 2007 Flu Clinic Registration kit.  Registration can be completed through October and clinics will be scheduled beginning in late October and continuing through December.

Like the swallows returning to San Juan Capistrano, CAI's Annual Law Seminar is returning to Las Vegas in 2008. 

Organized by the College of Community Association Lawyers, the Law Seminar is specifically designed for community association law practitioners, senior industry executives, and anyone else interested in understanding the unique aspects of community association law.

The 2008 event will be held January 25-26, 2008 at:

The Venetian Las Vegas     3355 Las Vegas Blvd, South    Las Vegas, NV  89109

702-414-1000

CAI has contracted for a limited number of rooms at a discounted rate of $269/night.  The reservation deadline for these discounted rooms is December 20, 2007 or until the available block is exhausted.  To reserve your room be sure to identify yourself as a CAI Law Seminar attendee when you call the hotel.

Additional information, including the seminar registration form, format, and schedule, will be posted on CAI's Law Seminar web page in the coming days.

 

I occasionally ask individuals for their permission to use items they have authored in my blog.  Judi Phares' Back Porch column in the current issue of Common Ground really struck a chord with me with its themes of ethics, service, and education (and dogs, since my son recently won the long-standing debate regarding whether or not he needed a dog).  Thanks to Judi for a very thoughtful piece and for permission to use it here.

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What's Good For Max and Muffin....

Judi Phares, CMCA, PCAM

My goal is to be the kind of person my dogs think I am. Tails wagging furiously at supper time, Max and Muffin remind me of this truth. Dogs—more accurately, family members with fur—have an innate sense of loyalty and trust. I’m inspired by their intrinsic belief that people have their best interests at heart and that we will always do the right thing for them.

My dogs have taught me a great deal, so it’s not surprising that I’ve found a correlation between dogs and business. Being the owner of a community association management company, I often make decisions that must measure up to a goal I’ve set for myself: being the kind of person my dogs think I am. The business corollary is that it’s the kind of character worthy of trust and respect.

Doing the right thing in business is at the heart of professional ethics standards. I’m proud that our young industry has established the Professional Manager Code of Ethics to which AMS, LSM and PCAM designees must adhere. It’s a covenant with our clients. As we educate our association boards, we also model for them the reality that governance always drives home: You can’t enforce standards until you have codified and communicated them.

Our professional credentials identify us as qualified service professionals with specialized skills and know­ledge in our field. We don’t earn trust based on our credentials; rather, we earn trust as a result of our actions. Designations demonstrate our degree of commitment and competence. Altruistic service proves we care.

Am I motivated by the welfare of my clients? Am I striving to serve the best interests of the community as a whole, not the special interests of one board member or developer? Let me be clear that altruism and profit are not mutually exclusive. On the contrary, people don’t mind paying qualified, caring professionals to provide them excellent service and treat them well.

By serving a community’s best interests, managers affect the lives and homes of thousands of people. They need to be able to trust us.

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Judi Phares is president of RTI/Community Management Associates, Inc., in Plano, Texas. Her firm is the winner of the 2006 American Business Ethics Award given by the Society of Financial Services Professionals.  She is also a past chair of the Board of Trustees of the National Board of Certification for Community Association Managers.

We have heard a lot of ideas over the past several months regarding how to address the growing number of home mortgage foreclosures across the country.  With the estimate of the number of homes at risk seemingly rising on a daily basis and a general government bail-out almost an impossibility given the federal budget deficit, I thought this idea from Steve Pearlstein of the Washington Post was an interesting market-driven approach to the problem.

http://www.washingtonpost.com/wp-dyn/content/article/2007/08/30/AR2007083001956.html?hpid=sec-business

CAI is currently conducting elections for leaders to join our three Membership Representation Groups (MRGs).  These individuals serve 2-year terms to represent our community association volunteer, professional community managers, and business partner constituencies.  In addition to providing policy guidance and leadership to the organization, the MRGs select individuals to serve on CAIs Board of Trustees.

The election is being conducted electronically and the web site is open to cast your ballots until 11:59 pm EDT on Monday August 27th.  I encourage every member to login to the web site and cast their vote for the individuals who they believe will best serve them and our organization in the coming years.

You can learn more about the candidates and access the voting system at our election page.

Who:  All employers

What: New Federal regulations on employee verification

Where: Nationwide

When: September 14, 2007

Why (you should care): Increased administrative burdens and potential fines and penalties

 

Estimates vary, but it is believed that there are anywhere from 7 to 12 million undocumented immigrants in the United States. In fact, over the past 15 years, the United States has seen an influx of immigrants (legal or otherwise) in numbers not seen since the turn of the 20^th Century.

 

Despite making immigration reform a centerpiece of his domestic agenda, President Bush was unable to push through reforms that would have allowed more qualified, legal workers into the country and would have taken steps to better enforce border security. The collapse of comprehensive immigration legislation has pushed the Administration to get tough on undocumented workers via regulatory means.

 

In August the Secretary of Homeland Security, Michael Chertoff, announced that the federal government is expected to bring a record number of enforcement proceedings against employers in the coming year. In addition, the Administration unveiled new regulations tightening employer requirements for verifying the legal status of employees.

 

On September 14, 2007, new employment verification provisions will take effect. The new regulations will require all employers to take affirmative steps to verify employees whose social security numbers do not match federal records. Under the new regulations, an employee will have 93 days to correct any mismatched information used for employment verification. If the employee is unable to correct the information on the government’s no-match letter, the employer must terminate the employment relationship or risk being in violation of federal immigration law and face substantial fines and penalties. The regulations and verification process are discussed in greater detail on CAI's Political Heads-Up page.

 

In addition to increasing the administrative burden on employers and the risk of fines and penalties, these stepped up verification requirements also hold the potential for widespread workforce disruptions as millions of undocumented workers get caught in the tightening regulatory net. For perspective, it could be like taking the population of Ohio out of the workforce. With an already tight labor market, many employers can expect further challenges in finding and keeping qualified employees.

With literally thousands of pages, CAI’s website is filled with content relevant to virtually every member, not to mention the millions of individual homeowners who live in community associations. With so much content, it’s no surprise that we experience nearly a million visits a year.  It is also no surprise that it is sometimes difficult to find the specific page you are looking for among the myriad of choices available.

As a result of this continued success, we have enhanced our homepage, providing easy-to-use "fly-out" menus that will help visitors navigate to the sections and content they need—with just a single click. 

The new menus are on the left side of the homepage at www.caionline.org. As you roll over any item with your mouse, you’ll see a list of key pages in that section. For instance, when your hold you mouse over Members Only, you’ll see Research Library, Advocacy Center Message Board, Discount Programs and Recruiter Club. All you have to do is click once and you’ll be transferred to that page.

We’ve also added In the Media, a feature that provides links to selected articles involving community associations, CAI and the industry at large. This page will be updated on a weekly basis.

We hope that these enhancements make CAIonline even more helpful to members and non-members alike.  As always, suggestions for future improvements are always appreciated.

I get asked frequently by media, boards, and even prospective home buyers: How do I know if my board is doing a good job?  Basically, what assurance do I have that my community is governed well? 

I typically encourage them to look for three general traits.

- Efficiency, or how well does the board safeguard and spend community's resources.  Do they treat their fellow owners money as their own?  Do they ensure that common areas and amenities are protected?  Do they exercise their fiduciary duty wisely?

- Effectiveness, or how competently are things done.  Are repairs made in a timely manner?  Does the condition and operation of the community fairly reflect the general expectations of the residents?  Is the association run in a business-like way?

and perhaps most importantly,

- Transparency, or how well does the board communicate what it is doing and why.  Do all members have access to the same information.  Are critical issues and decisions shared with the membership?  Is homeowner input solicited when appropriate?

The most effective leaders, whether you are talking about community association boards, corporate leaders, politicians, or sports coaches, are those who communicate well and often, engage their constituents in the ownership of the group, are responsive to constituent needs, and make reasonable and competent decisions when appropriate.

In that spirit, CAI has developed some basic governance guidelines for community associations.  We didn't attempt to create a detailed set of specific actions and behaviors for every situation, because of the many different laws that govern associations and the many different governance structures that they operate under.  What we did try to do was identify some of the most frequent areas of confusion and contention and define some expectations that were simple, straightforward, and reasonable.  We call them Community Association Governance Guidelines and they address such wide ranging issues as meetings, finances, debt collection and reserves.

You can find out more and download a free set of the guidelines on our web site.  We hope that this tool inspires communications within communities, encourages boards to set and meet expectations, and leads to better governance in communities of all sizes, shapes, and forms.

J. David Ramsey is a CAI past-president and practices law in NJ.  He recently drafted this summary (Adobe Reader required) of the NJ Supreme Courts ruling in the Twin Rivers case that I think deserves attention.  Most importantly, he speaks to the need for the Court to balance the free speech rights against the privacy and property rights that were in conflict in this case and makes the argument that the courts and not the legislatures are the appropriate venues for such balancing decisions.

Thanks for tuning back in to our long-running show Twin Rivers, Twin Rivers.  After a more than six-year run, we have reached our final episode with today’s ruling from the New Jersey Supreme Court.

 

Anyone with an interest in community associations is familiar with the Twin Rivers saga.  But in case you missed it, our story begins with a handful of residents in this NJ community of 10,000.  They claimed Twin Rivers was not a community association, but a government, and that a variety of community rules were infringing on their rights of free speech and assembly as guaranteed by the New Jersey Constitution.  They enlisted the help of the American Civil Liberties Union, along with Professor Frank Askin and his students at Rutgers University’s Constitutional Litigation Clinic, to have the courts, rather than the residents, determine the rules for their community. 

 

It has been an up and down story throughout.  First the Trial Court found for the defendants.  Then the Court of Appeals issued a partial reversal, finding for the plaintiffs on three issues.  But you can read more about the history of the case and the various court decisions in my previous blog post and on the CAI Twin Rivers page .

 

So let's cut right to the chase.  After a very long and very winding legal road, including an amicus brief filed by CAI on behalf of the Twin Rivers Homeowners Association, the New Jersey Supreme Court unanimously reversed the Court of Appeals, reinstated the Trial Court decision, and ruled today that:

 

• Residents of community associations in New Jersey not only have the right to express themselves, but also enjoy the freedom to set reasonable restrictions governing that expression within their communities
• Associations are not governments for constitutional or operational purposes
• The relationship between homeowners and their association is based on a contractual agreement that is fundamental to the nature of communities like Twin Rivers
• And as is always the case, effective governance is the art of weighing the rights and obligations of the individuals with the interests and responsibilities of the organization as a whole

The Court concluded, "... in balancing plaintiffs' expressional rights against the Association’s private property interest, the Association’s policies do not violate the free speech and right of assembly clauses of the New Jersey Constitution.”  The full text of the Supreme Court decision can be read here. 

 

This is an important victory for homeowners and associations across the country.  It validates and supports almost four decades of legislative history and judicial precedent regarding the status of community associations, it further defines and protects the rights of all homeowners, and it supports the traditional concept that government (whether it be the executive, legislative or judicial branches) should not interfere with private contracts and associations freely entered into.

 

So as the curtain finally comes down on our story, CAI thanks all those involved for the time and energy brought to this important precedent setting case.  We hope that association boards, as well as individual homeowners, will look to the NJ Court’s opinion for guidance and inspiration in developing, implementing, and administering reasonable rules in their communities.

 

 

As a matter of law, a federal agency only has the specific authority granted to it by Congress. That’s why CAI looked skeptically at the latest attempt by the Federal Communications Commission (FCC) to claim authority to regulate an association’s ability to enter into exclusive agreements with video service providers.

 

You see, the FCC looked at this issue several times in the past, but quickly determined that they didn’t have the authority to regulate services in this area.  But this time they suddenly ‘discovered’ an existing statute that they were not previously aware of that grants them this power. After this amazing revelation, the FCC issued a call for comments on what effected parties think about this claim. CAI made sure the voice of community associations was heard.

 

In short it’s about market power and access. Associations and developers use exclusive contracts to obtain an expanded set of services for their residents.  Such agreements are a strong incentive for service providers to invest the thousands and even millions of dollars required to extend their networks to serve new communities on the growing edge of an urban area. Limiting an association’s right to enter into such contracts diminishes an association’s ability to negotiate with providers to obtain bulk rates, quality service commitments, facility upgrades and new services for their members. 

 

But even if you disagree, the FCC, like all federal agencies is required to obtain a legislative mandate before it can extend its regulatory authority. The ‘discovery’ of a provision in existing law that the Commission previously overlooked shortchanges the democratic process. If there exists a growing problem with such contracts (a subject certainly open to debate), then the FCC is required to petition Congress to expand its powers accordingly. That way the debate will be open and transparent, rather than taking place in the less visible and more opaque world of regulation drafting.

 

Traditionally an agency or commission can take anywhere from several months to several years to review comments and follow up with either a determination, a call for additional comments or a proposed rule. We will be watching.

 

A copy of CAI’s comments can be found here. It’s just another example of our work to protect associations from over-regulation.

 

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