Board President Personally Liable for Violation of Fair Housing Act

In our most recent blog post, we discussed the issue of accommodation of service dogs, and specifically arecent Florida case, Sabal Palm Condos. of Pine Island Ridge Ass’n v. Fischer[1]. In this post, we’ll discuss another facet of that case: the individual liability of the Board president of the Sabal Palm COA for his actions.

To briefly recap the facts of that case: Deborah Fischer acquired a large service dog named Sorenson, in violation of Sabal Palm’s pet policy. Sabal Palm requested that Fischer produce copies of her medical records from all healthcare providers who had ever diagnosed or treated her disability, as well as “all documents” relating to Sorenson. Deborah provided Sabal Palm with some, but not all, of her medical records.

Contending that Deborah had not provided sufficient information, Sabal Palm sued the Fischers, seeking a declaratory judgment that it need not permit Deborah to keep Sorenson. The Fischers counterclaimed against, among others, Martin Silvergold, the president of Sabal Palm’s board of directors, for refusing to allow Sorenson as a reasonable accommodation.

Board President Silvergold argued that he was immune from suit because of the doctrine of “officer immunity,” which generally makes officers of nonprofit corporations immune from personal liability for actions or inaction on behalf of the nonprofit. This doctrine, however, is codified in state laws, and cannot override federal laws such as the FHA or ADA. And even if the “officer immunity” doctrine were not trumped by federal law, it only protects officers who act in good faith in accordance with their duty of care to the Association.[2] Because the Fischers presented enough evidence that Silvergold personally participated in the discriminatory acts, he was not immune from personal liability, and the case against him could proceed.

In the court’s subsequent opinion, it found that Silvergold was liable as a matter of law, and that the only remaining issue to be determined by the trial court was that of the amount of damages. The court held, rather scathingly:

There is no genuine dispute that Silvergold personally contributed to Sabal Palm’s refusal to reasonably accommodate Deborah. Silvergold testified in his deposition that, as the President of Sabal Palm’s Board of Directors, he voted against Deborah being allowed to have Sorenson and to sue Deborah. Since Sabal Palm’s refusal to simply grant her request to keep Sorenson is the basis of her refusal-to-accommodate claim, it follows that Silvergold personally contributed to the FHA violation. He therefore violated the FHA himself. The Court grants the Fischers summary judgment against Silvergold on the issue of liability. The case will proceed against him on the issue of damages.

In cases of refusal to accommodate a disability under the FHA, punitive damages may be awarded. Thus, in considering accommodating owners or tenants who have or who have requested to obtain a service dog, board members of an Association must exercise caution. Under most circumstances, it may be best to grant the request after a reasonable inquiry: a housing provider may request reliable disability-related information that (1) is necessary to verify that the person meets the Act’s definition of disability, (2) describes the needed accommodation, and (3) shows the relationship between the person’s disability and the need for the requested accommodation. Once these things have been established, denial of a request for accommodation should be done only with extreme caution and after consultation with your Association’s attorney.

[1] Some of the facts in this blog post are taken from the court’s previous opinion in this case, at Sabal Palm Condos. of Pine Island Ridge Ass’n v. Fischer, 2014 U.S. Dist. LEXIS 32705 (S.D. Fla. Mar. 13, 2014). As the procedural posture of this case was somewhat complicated, there are two written opinions issued within just a few days of each other.

[2] The exact standards a director is held to vary under the laws of different states. This case was decided under Florida law, but the Washington Nonprofit Corporations Act contains similar provisions.

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3 Responses to Board President Personally Liable for Violation of Fair Housing Act
  1. Margaret van Waardenburg
    June 21, 2014 | 8:25 pm

    I just found your website. A marvelous source of information. It seems like a condominium association, would at very least have insurance in place to indemnify it’s BOD for actions taken on behalf of the association. This requirement is written into our condo bylaws.
    On another matter, we have a board that is making decisions in closed meetings (neither reason given at an open meeting, nor notice given when closed meeting takes place on a date other than published monthly board meeting.) In reading 64.38.035 I interpret this as improper board action. I am working on a board recall meeting. The question I have is, our Bylaws, published in 2002, are not consistent with 64.38.035 as amended in 2011. Is compliance to the RCW required regardless of what the most current Bylaws state? I know in the case of discrimination the law supersedes the bylaws. Thanks for any information nuggets.

  2. Valerie Farris Oman
    July 1, 2014 | 1:55 am

    Hello Margaret,

    First off, if you are part of a condo association, RCW 64.38 doesn’t apply to your association, as it only applies to HOAs, not condos.

    The condo statutes (RCW 64.34 and RCW 64.32) do not have open meeting requirements. It may be that your governing documents do contain certain requirements regarding your board meetings, but an attorney would need to review those documents in order to give you an opinion on that.

    Good luck!

  3. Margaret van Waardenburg
    July 6, 2014 | 10:48 pm

    Thanks for the info. We are incorporated as a “condominium association” in the state of Washington in 1978 (64.32). 64.32 does not have any regulations about meetings. 64.34.332 says that a notice of meeting must be made by the secretary at least 10 days in advance of a meeting of the association but doesn’t say anything about “Board” meetings. Our bylaws reference 64.34 but only require notice for annual and “special” meetings. The board can meet anytime they like with only notice to board members.

    It seems like even in reading 24.03 the board can meet any time they want, in open or closed meetings. Guess it’s time to rally the homeowners to change the bylaws to require board transparency.

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Board President Personally Liable for Violation of Fair Housing Act

In our most recent blog post, we discussed the issue of accommodation of service dogs, and specifically arecent Florida case, Sabal Palm Condos. of Pine Island Ridge Ass’n v. Fischer[1]. In this post, we’ll discuss another facet of that case: the individual liability of the Board president of the Sabal Palm COA for his actions.

To briefly recap the facts of that case: Deborah Fischer acquired a large service dog named Sorenson, in violation of Sabal Palm’s pet policy. Sabal Palm requested that Fischer produce copies of her medical records from all healthcare providers who had ever diagnosed or treated her disability, as well as “all documents” relating to Sorenson. Deborah provided Sabal Palm with some, but not all, of her medical records.

Contending that Deborah had not provided sufficient information, Sabal Palm sued the Fischers, seeking a declaratory judgment that it need not permit Deborah to keep Sorenson. The Fischers counterclaimed against, among others, Martin Silvergold, the president of Sabal Palm’s board of directors, for refusing to allow Sorenson as a reasonable accommodation.

Board President Silvergold argued that he was immune from suit because of the doctrine of “officer immunity,” which generally makes officers of nonprofit corporations immune from personal liability for actions or inaction on behalf of the nonprofit. This doctrine, however, is codified in state laws, and cannot override federal laws such as the FHA or ADA. And even if the “officer immunity” doctrine were not trumped by federal law, it only protects officers who act in good faith in accordance with their duty of care to the Association.[2] Because the Fischers presented enough evidence that Silvergold personally participated in the discriminatory acts, he was not immune from personal liability, and the case against him could proceed.

In the court’s subsequent opinion, it found that Silvergold was liable as a matter of law, and that the only remaining issue to be determined by the trial court was that of the amount of damages. The court held, rather scathingly:

There is no genuine dispute that Silvergold personally contributed to Sabal Palm’s refusal to reasonably accommodate Deborah. Silvergold testified in his deposition that, as the President of Sabal Palm’s Board of Directors, he voted against Deborah being allowed to have Sorenson and to sue Deborah. Since Sabal Palm’s refusal to simply grant her request to keep Sorenson is the basis of her refusal-to-accommodate claim, it follows that Silvergold personally contributed to the FHA violation. He therefore violated the FHA himself. The Court grants the Fischers summary judgment against Silvergold on the issue of liability. The case will proceed against him on the issue of damages.

In cases of refusal to accommodate a disability under the FHA, punitive damages may be awarded. Thus, in considering accommodating owners or tenants who have or who have requested to obtain a service dog, board members of an Association must exercise caution. Under most circumstances, it may be best to grant the request after a reasonable inquiry: a housing provider may request reliable disability-related information that (1) is necessary to verify that the person meets the Act’s definition of disability, (2) describes the needed accommodation, and (3) shows the relationship between the person’s disability and the need for the requested accommodation. Once these things have been established, denial of a request for accommodation should be done only with extreme caution and after consultation with your Association’s attorney.

[1] Some of the facts in this blog post are taken from the court’s previous opinion in this case, at Sabal Palm Condos. of Pine Island Ridge Ass’n v. Fischer, 2014 U.S. Dist. LEXIS 32705 (S.D. Fla. Mar. 13, 2014). As the procedural posture of this case was somewhat complicated, there are two written opinions issued within just a few days of each other.

[2] The exact standards a director is held to vary under the laws of different states. This case was decided under Florida law, but the Washington Nonprofit Corporations Act contains similar provisions.

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3 Responses to Board President Personally Liable for Violation of Fair Housing Act
  1. Margaret van Waardenburg
    June 21, 2014 | 8:25 pm

    I just found your website. A marvelous source of information. It seems like a condominium association, would at very least have insurance in place to indemnify it’s BOD for actions taken on behalf of the association. This requirement is written into our condo bylaws.
    On another matter, we have a board that is making decisions in closed meetings (neither reason given at an open meeting, nor notice given when closed meeting takes place on a date other than published monthly board meeting.) In reading 64.38.035 I interpret this as improper board action. I am working on a board recall meeting. The question I have is, our Bylaws, published in 2002, are not consistent with 64.38.035 as amended in 2011. Is compliance to the RCW required regardless of what the most current Bylaws state? I know in the case of discrimination the law supersedes the bylaws. Thanks for any information nuggets.

  2. Valerie Farris Oman
    July 1, 2014 | 1:55 am

    Hello Margaret,

    First off, if you are part of a condo association, RCW 64.38 doesn’t apply to your association, as it only applies to HOAs, not condos.

    The condo statutes (RCW 64.34 and RCW 64.32) do not have open meeting requirements. It may be that your governing documents do contain certain requirements regarding your board meetings, but an attorney would need to review those documents in order to give you an opinion on that.

    Good luck!

  3. Margaret van Waardenburg
    July 6, 2014 | 10:48 pm

    Thanks for the info. We are incorporated as a “condominium association” in the state of Washington in 1978 (64.32). 64.32 does not have any regulations about meetings. 64.34.332 says that a notice of meeting must be made by the secretary at least 10 days in advance of a meeting of the association but doesn’t say anything about “Board” meetings. Our bylaws reference 64.34 but only require notice for annual and “special” meetings. The board can meet anytime they like with only notice to board members.

    It seems like even in reading 24.03 the board can meet any time they want, in open or closed meetings. Guess it’s time to rally the homeowners to change the bylaws to require board transparency.

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