QUESTION: Can a person who is a sex offender be on the board? He only got a misdemeanor but is on the registered sex offender site.
ANSWER: Neither the Davis-Stirling Act nor the Corporations Code prohibits registered sex offenders from serving on boards of directors. But, depending on the wording, associations can amend their documents to prohibit serious offenders from serving on the board.
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.
Discrimination. California prohibits discrimination against registered sex offenders when it comes to health insurance, insurance, loans, credit, employment, education, and housing. (Penal Code §290.46(2).) Since the statute does not include "serving on a board," associations can amend their bylaws to prohibit sex offenders from serving on the board.
Reasonableness. However, a blanket prohibition might be deemed unreasonable if challenged. Should Tier I misdemeanor offenders be restricted? In California, the maximum punishment for a misdemeanor is a $1,000 fine and up to six months in jail. Examples of misdemeanor violations are petty theft, driving on a suspended license, vandalism, drunk driving, and indecent exposure. There are cases of teens having sex, being caught by a parent, and charges filed. One of our readers, a sheriff's deputy, reported that a young man he knows was convicted of a misdemeanor as a teen for having sex with an underage girl--they married when she turned 18 and now have 3 kids. He still has to register. That seems a bit punitive.
The reasonableness of a restriction is determined by whether it is rationally related to the protection, preservation or proper operation of an association. (Laguna Royale v. Darger.) Would a court agree that barring someone with a misdemeanor from serving on the board is rationally related to the protection, preservation or proper operation of an association? That seems unlikely.
Recommendation: Many associations use a generic prohibition against felons serving on the board. This prohibition is enforceable since it is already provided for in Corporations Code §7221 and would prevent Tier II and III sex offenders from serving on the board. If a Tier I misdemeanor offender wants to run for the board and homeowners object, they have recourse--they can elect someone else.
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