Cyber Citizens For Justice Weblog

Condominium and Homeowners Associations are required by Florida statute to give notice to owners of board meetings, and permit owners to attend such meetings.
But what defines a Board “meeting”? What if the directors exploit the convenience of E-mail to conduct their detailed discussions, and then gather infrequently for board meetings to rubber stamp decisions which have been reached in secret via E-mail? How would owners then be able to observe their board at work on their behalf?

Homeowners without access to a computer or who aren’t computer literate could neither “observe” nor participate in board meetings conducted via electronic media.  It would be disciminatory to hold such meetings until computer ownership and literacy were far more common.  However, we’re rapidly approaching that point so it would be responsible to address the issue before it becomes another acute problem

Florida statutes for condos and HOAs are mute on this topic. They do explicitly permit directors to attend board meetings by telephone - but that is the extent to which they address modern technology.

The Florida Sunshine law, which applies to most public boards of administration, but which does not apply to condos and HOAs, is more specific in that it does address written correspondence between board members, including E-mail. Under that law, such correspondence is permitted between board members if it is limited to providing information about a subject to be discussed at an open meeting, and provided that there is no response from, or any interaction between, board members related to it (see chapter 01-20 of the “Government-in-the-sunshine” manual)).

But why should condos and HOAs not be subject to the Sunshine law? Their boards are taxation authorities in the same way that municipal and school boards are. Perhaps the difference is that, while it is impossible to own a home in the state of Florida which is not subject to municipal and school tax, it is still possible to own a home which is not part of a condo or HOA. However, it is increasingly difficult to do so, as municipalities have encouraged developers to create HOAs in recent years - as a way of unloading the responsibility for road maintenance and other services.

The Florida Sunshine law should be applied to the boards of administration of all deed-restricted communities like condos and HOAs, and the Sunshine law should be reviewed within the context of all modern forms of communication, including e-mail, instant messaging, and web logs.

In the small town of Washington, CT (Source: New Milford Spectrum), a Finance Board of 6 people has been penalized by the State for using public funds to influence the outcome of a referendum (Source: New Milford Spectrum, 08/18/16).
In a widely distributed mailing, the Board was found to have advocated defeat of the proposals in the referendum.
One citizen filed a complaint and the State Elections Enforcement Commission (SEEC) got involved.  Each Board member was subsequently ordered to personally pay $200 to the State, and $59.50 to the Town of Washington, CT - to cover his/her portion of the cost of the mailing.
Despite paying the fines, the Board insisted that any violation of the rules was “inadvertent and unintentional”.
The SEEC also ordered the Board to “henceforth strictly comply” with the statute authorizing only “concise explanatory texts” for public distribution.

 In another story (Source: ccfj.net), the Florida Department of Business and Professional Regulation (DBPR) responded to a complaint by the Secretary of Cove at South Beaches Condo Association in Melbourne Beach in March, 2006. DBPR found the following statutory violations:

1. Altering a candidate information sheet.
2. Sending out information sheets exceeding the allowed one page.
3. Failing to properly notice the annual meeting/elections. 

Ballot irregularities were also discovered amid allegations that the President postponed the election in order to have more time to sway voters and complete pet projects.
The Board was ordered to conduct a new election by a specified date with corrected information sheets and proper notification. Failure to do so could result in a $5,000 penalty per violation, against the Association.

In both cases, Boards were perceived to be using their influence to manipulated election results. One Board used public funds, the other, Association funds. Complaints were filed with the appropriate authorities. Those commissions found wrongdoing, whether intentional or inadvertent. Both demanded corrective measures which were minimal in penalty but significant in delivering a clear message; the statutes are to be taken seriously, and someone is paying attention.
The main difference, however, is that in Florida, despite the Board’s errors, the financial penalties were threatened against the Association - the victims, not Board members - the perpetrators.
This begs several questions and points of discussion:

1.  Should there be a minimum educational requirement for Board members regarding statute, rights and responsibilities?
2. Whether paid or unpaid, should Board members be held financially responsible as individuals, for violations of statute?
3. Should Associations have to pay for Board negligence, ignorance, or wrongdoing?

 Some argue that if members are held financially accountable, no one would want to run for office. In the case of Washington, CT, it doesn’t seem that the penalties were substantial enough to deter one from running. Hopefully, they were enough to precipitate positive change.
Perhaps Florida condo law could learn from Washington, CT, and move toward protecting unit owners from incompetent Boards, instead of  insulating Boards from being accountable for their actions or non-action. (more…)