16-Jun-18 – His behavior admittedly aggressive, some would say obnoxious and rude, but a state appellate court says a condominium association in Chicago was wrong to fine a unit owner for expressing his opinions about how the association is managed.

Michael Boucher sued 111 East Chestnut Condominium Association and seven of its board members after they imposed a $500 fine against him for allegedly violating condo rules that prohibit “obnoxious or offensive activity within the association.”

On August 23, 2011, attorneys for the condo association sent a letter to Boucher, accusing him of yelling profanities at an employee of the association who tried to enter an elevator with him. Video of the incident was captured, without audio, by a security camera and a board member who later viewed it said, “You can almost see the spit coming out of his mouth, he was so furious with her.”

Five days later, Boucher received a second letter, saying he had used profanity with another employee while trying to get a replacement key card, an incident in which witnesses said he was “rude and disrespectful.”

Boucher says he was only expressing his opinions and the fines were a violation of the Illinois Condominium Property Act that prohibits condo boards from adopting rules that impair rights guaranteed by the First Amendment.

At a hearing with the condo board, Boucher’s attorney requested a copy of evidence against Boucher, but the request was denied. The attorney later asked for a copy of a videotape of the hearing and that request also was denied. Boucher paid the fine but sued the condo board in November 2013, saying he was penalized by the board in retaliation for expressing his opinions about management practices. (Left) 111 East Chestnut Condominium, seen behind the Water Tower on Michigan Avenue.

Unit owner described as obnoxious, offensive

Board members described in detail how Boucher deserved the fines, testifying that in addition to the two incidents for which he was fined, Boucher had in the past “used sexist, racist, and scatological language, insulted employees, and exposed his scrotum to people in a board meeting.”

Boucher was accused of years of “obnoxious and offensive activity” that caused “numerous complaints from unit owners and building employees.” Complaints included engaging another employee of the management company in a late-night discussion about enemas and calling the board president a “dago.”

Because of Boucher, two sexual harassment claims were filed with Illinois Department of Human Rights and Equal Employment Opportunity Commission by a female doorperson. Boucher says he is “aggressive with everyone” and admitted to calling the doorperson a “cocky bitch.”

The trial court sided with the condo association but the Appellate Court of Illinois on June 14 agreed with Boucher that he was fined for expressing his opinions about the board’s management of the condominium.

The appellate court also said 111 East Chestnut Condominium Association violated the Illinois Condominium Property Act by refusing Boucher’s request for a copy of the recording of the meeting at which the board considered the misconduct charges, and the association and board members violated their fiduciary duties by withholding from Boucher evidence brought against him.

Norman Lerum, a Chicago attorney who represented Boucher, says the ruling reinforces that condo board members are bound by state law. “Condominiums are not private country clubs, nor is the relationship contractual,” said Lerum (right). “The relationship between unit owner and association is created, and governed, by statute. Board members are not authorized to pursue private objectives not authorized by statute.”

First District Appellate Judge Mary Anne Mason dissented, saying that condominium associations are “mini-democracies” that depend on members obeying its rules.

“Condo associations, like some democracies, can be utterly dysfunctional,” wrote Judge Mason (left). “This is particularly true when one association member decides that the constitution to which he agreed to be bound when he voluntarily became a member of the association simply does not apply to him.”

The case will go back to the lower court to decide again, using the rulings of the appellate court as a guide. The appellate court ruled in favor of three board members who said they did not participate in the decision to withhold evidence from Boucher.