Megan's Law is named after a seven-year-old girl who was raped and murdered by a child molester who had moved across the street from her family. The crime triggered the passage of Megan's laws in a number of states including California to provide the public with information on the whereabouts of dangerous sex offenders.
Database. California has a database of registered sex offenders available for public viewing on the internet. Searches can be done by an offender's name, or by city, zip or within a predetermined radius of a selected park, address or school. Once an offender has been located, his or her picture is displayed, as is the person's present address, offenses, known aliases and any distinguishing scars, marks and tattoos. The information is available at www.meganslaw.ca.gov.
Offender Classification. There are different levels of sex offenders. The classification depends on the crime committed, the age of the parties involved, and the person's propensity to commit additional offenses. Following is a summary of California's classification system:
Tier I Sex Offenses. Public indecency, voyeurism, possession of child pornography, and sexual contact without consent.
Tier II Sex Offenses. Trafficking of minors for the purposes of sexual activity; sexual contact or acts with persons between the ages of 12-15; sexual offenses where the offender has a position of authority over the victim (parent, guardian, babysitter, teacher); and the production or distribution of pornography that includes minors.
Tier III Sex Offenses. Sex acts where force was used; sex acts where the victim is rendered unconscious or impaired through the use of drugs or alcohol; and sexual acts where the victim is under the age of 12.
Duty to Disclose? Although board members are fiduciaries, there does not appear to be a duty by directors to disclose the presence of registered sex offenders in the association. Not all sex offenders are dangerous. The law has created protections for offenders who have "paid their debt" to society. The only time disclosure is allowed is to protect persons at risk. Moreover, the disclosure must not be for the purpose of discriminating against or harassing the registered offender. Impermissible disclosures could lead to criminal prosecution and civil liability for directors. One unpublished case addressed the disclosure issue in a footnote:
FN2. ...In the case of sex offenders, where the Legislature has established a mechanism for public disclosure of the whereabouts of repeat offenders, there is no duty to warn about the proximity of specific individuals merely because of their prior offenses. (Civ.Code, §2079.10a, subd. (b).) (Wentworth v. Sierra North Village HOA.)
Notice to Membership. Regarding notice to the membership, boards have several options, depending on the circumstances and the degree of risk they are willing to assume.
1. Make No Disclosure. Boards could elect not to mention the presence of a registered sex offender. This avoids any potential liability that may arise from improper use of the information, improper notification, or mistaken identification. However, if a child in the association is molested by that person, the parties involved might sue the board for failing to notify the membership of the potential danger.
2. Direct Members to the Website. Boards could include a notice in the association's newsletter about the Megan's Law website. The board would make no comment about a registered offender living in the association; it would simply encourage members to examine the website.
3. Contact the Police Department. Directors could contact the local law enforcement agency and ask it to give notice to the membership. The advantage is the board's avoidance of potential liability for giving improper notice. The disadvantage is the agency may refuse to give notice.
4. Disclose Identity and Address. This option should NOT be exercised without advice of counsel. It may put the board in violation of statute and it creates potential for defamation since the information on the State's website may not be accurate.
The board's action will depend on the seriousness of the threat. Boards should seek counsel before taking any action.
Serve on the Board. Beginning January 1, 2020, associations can no longer prohibit registered sex offenders or felons from serving on their boards of directors unless they affect the association's ability to obtain a fidelity bond. A bill sponsored by Marjorie Murray's Center for California Homeowner Association Law (CCHAL) voided all candidate qualifications for homeowner associations in California, except those allowed by CCHAL as outlined in the bill. (See Candidate Qualifications.) This is unfortunate since there is good reason for owners to keep Tier II and Tier III offenders off their boards of directors.
Amend CC&Rs. Associations that wish to amend their CC&Rs to prohibit high risk sex offenders from living in the development must take into consideration California's Penal Code §290.46 which makes it clear that Megan's Law is not intended to punish registered sex offenders and specifically prohibits using their status to harass or commit any crime against them. Specifically, a person's status as a registered sex offender cannot be used against their:
(A) Health insurance
(F) Education, scholarships, or fellowships
(G) Housing or accommodations
(H) Benefits, privileges, or services provided by any business establishment
Doing so could make someone liable for damages, attorney's fees and fines up to $25,000. (Pen. Code §290.46(l).)
Recommendation: Regardless of the option chosen above (in consultation with legal counsel), boards should consider putting a standard notice in their newsletters that would appear in all future newsletters. The notice should be generic and state something similar to the following: "For information on registered sex offenders, visit www.meganslaw.ca.gov.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.