 Good afternoon, and thank you for joining us on Condo Insider. This is the weekly show on, we're live streaming from Think Tech, Hawaii. And this is a show that deals with condominium living and issues that affect people who live in condominiums. And since over 30% of the people who live in the state of Hawaii live in condominiums, we hope that the information we provide is useful or helpful to you. And we thank you for joining us. Today, we have a very special guest. He's a citizen advocate, citizen condo advocate. His name is Tim Apachello. And he has served as a board member on condominiums here and in his former town of Seattle. Welcome to the show, Tim. Thank you very much, Jane. I appreciate it. Tell us about yourself. Well, as you mentioned, I currently serve on a condominium board. I've served over 21 years in different capacities, president for a number of years, vice president and then, you know, directors at large. And so after 20 years, you kind of see some patterns. And I felt it was important to kind of stand up for owners' rights. And but at the same time, I am a board member and have been a board member. So I get a perspective of both sides of the fence. Okay. And you and I met because you were advocating for legislative change in the condo statute, that's 514B. Correct. Why don't you tell us what change you're advocating for? Well, specifically in 514B is a section of 125, which basically it allows the owner the right to speak during an open board meeting, the right to ask a question or make a statement. And the spirit intent of 514B-125 is exactly that. Allow an owner to participate during the board meeting. So what kind of change are you advocating? Well, really one of just to clarify some of the verbiage within the existing law, to make sure it's crystal clear that an owner does have that opportunity to participate. There are a number of boards I think in Hawaii that for one reason or another, actually rather prohibit any owner participation during the board meeting. And know that there are two sides to every argument. So from a board perspective, I understand why and how that could happen. But as an owner, I also understand that it's critical to be able to have the ability to ask a question or make a statement. Okay. And currently now there is a provision in the statute that allows a board to prohibit participation by members of the association. Is there not? Well, again, I think the spirit in the Attended Law is not to prohibit. Right. However, the way the statute's been worded for many years, there is a bit of a twist, if you will, of the verbiage that allow boards or boards think they have the right to take a vote and prohibit any and all interaction. And that's precisely what I want to try to change is some of these words that really do encourage, one, members to show up to their own open board meetings, but to the ability to ask a question. I think it's paramount that the more owners that show up to a board meeting, the better informed they are, the better informed they are, the better that conflicts are resolved at the board level. And how did you get involved in this issue? Well, actually last year I noticed, I saw in the paper that there was a committee hearing for an odd Budsman, a state on Budsman proposal. And I thought about it and I thought there are a lot of times when an owner has a grievance and it's really not resolved through any agency, state or county agency. It's really up to personal litigation to resolve some of these grievances. There are mediation opportunities in some recent that are very, very, very good, but most owners other than litigation really had a very difficult time of trying to resolve their grievances or get further clarification on an issue. And I think the board meeting is the opportunity for people to bring issues to the table. And when certain boards don't allow communication from its owners, I think that is the source and the start of problems. And I think that's problematic. And so how did you get involved? Well, I basically start knocking on doors, start trying to talk to people in the legislature, trying to look at the existing law and say, how can we change this that very clearly allows people to speak, but at the same time puts limitations on their rights to speak. No owner has the right to hijack a board meeting. So there has to be time limitations that someone's allowed to speak, but at the same time that opportunity to speak. And so, and I know that you are working with a legislator now with a bill that's going to be heard probably in the next session. I hope so. Yeah, 2017. And so basically what kind of changes are in this bill? Well, they're very minute actually. The current law says that any owner shall be able to participate or attend a open board meeting. And then the words go, that owner may participate in any deliberation or discussion. The word may can be interpreted. Obviously you may be able to, you may not be able to. So I want to correct one word to say shall be permitted to participate in any deliberation or discussion. So it's one word. And then there's a part in the current statute that states that a quorum of the board may take a vote to possibly limit or prohibit speech. And I want to remove that one segment and replace it with their right to allow someone in executive session under, you know, the proper conditions, but also make sure that someone's not coming into executive session. That's privy to maybe legal situation or or budgetary situations and things like that. So I want to play safeguards for both the board of directors and the owners and make sure that this law has been clarified so that can't be misinterpreted. Therefore an owner's rights have been denied. So that means that if this bill passes that a member of the association can go to a board meeting and can ask questions and participate at all levels of that board meeting. During the duration of that meeting with time limitations, not too dissimilar that what one might see at the legislature where there's a time clock and you're allowed maybe 90 seconds to make your point, maybe 120 seconds to make your point. And you're allowed that to make to ask a question or make a comment. Now at the same time the board of directors may not be under any obligation to to grant you an answer right then and there. They're not obligated to solve your your grievance right there on the spot. So it's but it's important to have that exchange of information that communication so that we can A, acknowledge that there's a conflict or grievance, but B, have the board the ample time to research it and and get back to that particular owner. Well you know some boards now they have in on their agenda a portion of their meeting set aside and it's called the owner's form. And so they say well you know we allow participation but you can only speak during the owner's form. So that means if you've got a gripe or you want to bring something to the attention of the board that's the only time you can speak. What do you say about that? Well I think having a portion of the agenda set aside for people to speak is very important but not 100% limited to that that segment of the agenda. We know that there are ad hoc motions that come up and all it takes is a for a second by another board member and potentially a very important motion could be approved and part of part of the House rules or or financial implication or something like that. So it's imperative that someone have the opportunity to raise a question or make a comment before an ad hoc motion is made. And so that means that you know if you're talking about let's say you're the board is talking about some work that's going to be done in the project. Maybe some garage repairs or something like that and they're talking about you know certain defects that have to be addressed. And well why do you think it's important that the members can participate in that portion of the meeting? I'm glad you mentioned that because there's a classic example where this particular board that I served on we were talking about repair of the cast iron sewer pipes. And we were going down this road of possible repair and scope of work and we happen to have someone in the audience who that's what they did for a living is they were a sewer cast iron contractor that knew some of the challenges particularly with the system of pipes we had and had we not listened to that person we would have gone completely down the wrong road and cost the association a lot of money. So the point I'm trying to make is there are many people in the audience that have all sorts of levels of expertise and it's not that the board has to you know take their suggestion but they might want to listen because it could save a lot of money for the entire association down the road. And also too because they live on the property they have eyes and ears that can bring information to the board that maybe the board members don't aren't aware of. You know I spent 20 over 20 years on a board and let me say explicitly and definitively we do not know all and we do not you know think all. We just we are you know we're volunteer members and no one has a monopoly on knowledge when it comes to the care and maintenance of a building. And so the more eyes and ears you have the better off the better decisions you can make. I think that's true with any any kind of question or decision to be made the more input you have now maybe 90% of it is not doesn't pertain to the exactly the thing you're trying to resolve. But anytime you have more information it's you're going to get a better decision. Right. And so that's why you're advocating for this open participation. One of the many reasons I guess I can go on a more global scale and that is you know we go back 240 years and how this country was formed. And the primary reason was that you know the colonists did not have an opportunity to address grievances with the government that you know presided over them. You have influence by a government be it federal be it state be it city be it county be it parish. It's it's fundamental right to be able to have some input into that government except for perhaps condo association governments. And that I think is a fundamental flaw to 514b-125 because it's being twisted so that some people don't have any influence into the government that influences their lives. And as a condo owner since there is so much influence this board has on you know your living condition it's really important as far as your concern that members have access to the board and their decision making process. Well when you're paying monthly dues be it for anywhere from 300 to over a thousand you know I don't know how much people pay because we have all sorts of associations out here in the state. But when you when you pay monthly to an association I think that gives you some right to make a comment or ask a question during an open board meeting. Maybe that's just me but you know I pay for this microphone basically. Right. Okay well you know and I think there's a lot of people who who agree with you and and so you know and another part of this bill you were talking about was the executive session. And the executive session for people who aren't aware of it is when the condo the board will recess their public meeting and go into executive session because it deals with private matters that you don't want to discuss in public like ongoing litigation or some collection issues and things like that. And your bill will would allow members to participate in executive session. And can you explain how that would happen. Right. Well you just said it perfectly. Let's say I haven't paid a bill and I don't want to have all my neighbors know that I have for whatever reason not paid my maintenance bill for a number of months. It would be nice to have an opportunity to talk to the board directly on how to best resolve that and and maybe executive session is that opportunity. It's not a guarantee that I get an executive session. But the way the law would be written is that a majority of the board would allow an owner into executive session providing that there would be no information that concerns personnel or litigation or attorney client privileges or the negotiation of contracts for an owner to hear those things which are usually privileged for an executive session. Okay. Well we're going to take a break right now. We're going to come back and we're going to spend more time on this. But we're going to take a one minute break and we'll be back. You're watching Think Tech Hawaii 25 talk shows by 25 dedicated hosts every week helping us to explore and understand the issues and events in and affecting our state. Great content for Hawaii from Think Tech. Hello everybody. My name is Mark Shklav. I'd like you to join me for my program Law Across the Sea on ThinkTechHawaii.com. Aloha. Aloha. My name is Danelia D-A-N-E-L-I-A. And I'm the other half of the duo, John Newman. We are the co-hosts of Keys to Success which is live on Think Tech live streaming network series weekly on Thursdays at 11 a.m. Aloha. Aloha. Aloha. Hello. This is Martin Despingh. I want to get you excited about my new show which is Humane Architecture for Hawaii and Beyond. We're going to broadcast on Tuesdays at 5 p.m. here on Think Tech Hawaii. Okay. Well thank you. Welcome back. We're talking to Tim Apachella, our citizen condo advocate. And he's a regular citizen just like you are listeners. And he is entering the dangerous foray of going into the legislature on behalf of all of you and his fellow condo owners basically to get them access. So that the board, so that members can speak up at board meetings or have the right to speak up at board meetings. And we were talking about executive session when we left off. Now executive session is someplace where the board will recess. And all the members have to leave mainly because the board is going to be talking about these private issues. That typically you don't want to discuss in public ongoing litigation, ongoing negotiations and privacy matters. You mentioned one example, a collection matter that maybe a homeowner would not want to discuss in private. What would be another matter that would somebody that a member would want to discuss with the board in executive session? Let's say I had a health condition and I wanted to preserve my health privacy. And I didn't want all my fellow neighbors to know what my health issues may or may not be. And you would not need an accommodation. I'm going to go to the board and ask for accommodation either with my unit or some part of the common area that would give me or them to consider an accommodation given my health dilemma. Right. That would be a perfect opportunity for someone to address a request to enter an executive session. And so under the way your bill works is if you are a member and you have a health issue or let's say a collection issue or maybe even a dispute with the board that you would don't want to air in the public, you would go to the board and say, you know, I'd like to resolve this and I'd like to talk to the board in executive session. And so the board was allowed to vote on that, right? Well, or at least hear what you had to say, not necessarily take a vote, at least hear what it is that you're trying to get across. Now I want to make sure that this doesn't somehow sidestep a formal grievance procedure that the association may have. Two different things. Right. But they, but you, but your bill would allow a member to meet with the board in executive session to discuss certain issues covered by privacy or things that, you know, most people would not want to discuss in public. Well, the existing law actually allows the board to vote in take a majority vote and allow someone in the executive session. So it's in the existing law right now. I'm just putting a little clarification on it. And I'm certainly not really, that's not the thrust of my bill. The thrust of my, my proposal on this bill is again, the ability to speak and ask a question. And then to further define that by saying the board of directors has the ability and the right to place time limitations on your, your presentation to the board. Okay. Well, you know, when, when we started this discussion, you said what got you interested was this ombudsman bill. There was an ombudsman bill in the 2016 legislature. It didn't pass. Right. It didn't pass. But under that bill, what would have happened was that an office, the ombudsman office would have been established in the attorney general's department. And that would then require the office to staff, to hire staff, and I guess to handle complaints by unit owners. And I guess our concern is that that just creates another bureaucracy. And then there's no guarantee that you're going to have ombudsmen or staff members who even understand the condo law. Right. And I talked to you before this show about an idea that has been circulating about having a voluntary ombudsman program where we have people who are in the industry like retired property managers, retired judges, retired attorneys, and you know, who are in the, you know, who understand condo law and they would be the ombudsman. And you know, we would go to the legislature and get some, get an office at the DCCA and maybe be able to use their staff to, you know, process claims. What do you think of that idea? I think it's a worthwhile idea. And I think if you have the right people that have the knowledge and on both sides of the fence, being on the board or as an owner or like you said, experiencing with condo law and management, I think it could be a very worthwhile effort. And I guess backing up a little bit is it was the ombudsman bill that made me sit back and think, I go, why are all these complaints going to the legislature? Why are all these complaints going to agencies yet not being resolved? And it really, for me, it capsulized into the point that conflicts are not being resolved at the meeting between owner and the board. And then I started digging a little bit more and finding out that there are a lot of boards. Now, one property manager estimated somewhere between 28 to 30% of their condo boards do not allow participation by the owners. That's a lot. That's a lot, yes. That's a lot. So I'm thinking, well, if you're not allowed to speak or ask a question, that's a frustration that kind of grows. And what happens to a frustration that grows? It goes to one of the government agencies and the government agency said, well, we don't have any authority to resolve your issue. And then you go, well, I don't have $80,000 to put into a litigation fund. So then they go to the legislature and ask their representatives to step in on their behalf. So why not fix the problem at the source? And that is at the board meeting. And give people their 60 seconds, 90 seconds, 120 seconds, and try to resolve it through communication rather than litigation or going to agencies, public agencies. Right? Well, you know, just as that segues into the resolution of disputes, because sometimes you have a situation where even if you're allowed to speak up or even write letters to the board, the disputes do not go away. And so, in fact, the legislature has a process. I mean, there's a dispute resolution process. First, you do mediation, and then you can do arbitration. Mediation, there are no attorneys or, you know, the associations that they want to use an attorney, they can. And a couple of years ago, we moved, a bunch of us moved to get evaluative mediation adopted. And now it's been approved by the real estate commission. And they have hired contractors in the state. And so you have, in Oahu, you have DPR, and you have two private attorneys who do the evaluative mediation. And, you know, the evaluative mediation, what it does is it basically listens to both sides, and you have some expertise, the neutral house, and some expertise in condo law, and like a retired judge. And that person listens to both sides and makes an opinion, says you have a lousy case or you have a good case. And hopefully the, you know, the purpose of the evaluative mediation is to try to resolve the dispute. Because if you've got somebody who has experience and has some authority telling you you have a lousy case, I mean, I would think that most people would say, OK, well, then I'll... I agree, because there's nothing more powerful than hearing the words from this mediator saying, if this came to my courtroom, here's how I'm going to look at this bit of evidence that you presented, or here's how I'm going to rule on your position on this. And both sides get a reality check, and let me tell you, that brings the parties together. Right. It's powerful. And about five years ago, or four years ago, I actually was in the value of mediation between our association and it was a construction defect situation. And, boy, let me tell you, that was resolved right then and there that day. And any further than that, because we both, as the association and as the contractor, we got a reality check that maybe our case isn't as strong as we thought. Right. So both parties said, OK, let's resolve this, and let's resolve it now. Right. And now under the program that's in place now for evaluative mediation, each side pays $350. And you go to one of these contractors, and DPR, which is dispute prevention resolution, they have a business in town, and all of their neutrals are retired judges. Right. All of them are retired judges. And so each side pays $350, and the state of Hawaii kicks in $3,500. And not only do you have retired judges, let's say it's a construction or a structural issue, they have engineers, they have architects on their panel as neutrals. So you don't have to have a lawyer or a judge, you can have one of these experts. Yeah. And the people that have gone through it, we've been getting pretty good feedback, but we have a problem. Sometimes we have associations who stonewall and don't show up, or they stall, and it takes months to get them into the mediation. And so right now, what we're faced with is how do we get them into the room? You know, conflict resolution, it comes down to good faith by both parties. And you could have all the structures set in place, but if one side or the other has zero good faith to resolve the matter, then maybe that's the time where you have to go beyond the mediation into litigation. And hopefully that would be the last resort. Well, we're trying to avoid that. So one suggestion, and this is only a suggestion where they're still kind of working on it, is to say, okay, there's a statute that says you shall mediate. It says shall. And we're going to change the statute to say, if somebody initiates the mediation, the other side has 30 days to respond. If you don't respond, the initiator can proceed without you. And then there'll be a default. The person who's doing the evaded mediation will render an opinion. It's one hand clapping. And that means, and so now that person who has the complaint has an opinion that they can take into arbitration or litigation. If the other side then decides, oops, well, you know, we don't like that opinion, they want to set it aside. They have to go to court and explain to a judge why they didn't show up. And in other words, it's a sanction for not showing up. And so that's an idea we're batting around going to the legislature. And what do you think? It's fair? Well, I'll go back to my point is, even if there's a requirement to show up within 30 days, that cannot legislate good faith. And so that is, it's the hope that both parties really truly want to resolve that conflict. And hopefully most people do. I think most people that take the time to go to mediation have some sense of good faith to try to resolve the matter. We're going to have to end our conversation on that note, but I'm sure we're going to have more to talk about after this session is over. And I hope you'll come back and speak to us after this session and maybe report on the success of your bill. I'd like to think so. Thank you very much, Jane. Appreciate it.