Q: Hi, I’m a property manager of a condominium association. I received a notice of intent to run a biography from one of the owners in our building, and the owner’s biography has lies about some of the current board members that he’s running against. Can I include something in the second notice that we mail to the owners letting them know that there are lies in the candidate’s biography?
A: This situation happens in many communities that we represent. Unfortunately, you cannot include anything in the second notice package about what is written in a candidate’s biography, whether it is negative or positive. It is also important to note that you cannot alter a biography.
Q: I’m on the board of directors and our election is coming up. I know there are some rules about people not being able to run if they have been convicted of a crime. Are we required to do background checks on the candidates?
-K.L., Boynton Beach
A: The rule that you are thinking of is 718.112(2)(d) Fla. Stat. which states that anyone who has been convicted of any felony in Florida or in a United States District or Territorial Court, or who has been convicted of any offense in another jurisdiction which would be considered a felony if committed in Florida, is not eligible to serve on the board unless their civil rights have been restored for at least 5 years as of the date they seek election to the board. That being said, the board is not required to complete a background check on any candidate for the board under 718 Fla. Stat.
Q: I live in a homeowners association, and since I have lived here we’ve always voted for our board members the same way as I did when I lived in a condominium association with the secret ballot system (smaller envelope being sealed inside the larger envelope). We recently hired a new management company and they let us know that we aren’t supposed to be voting this way. Are they correct?
A: It’s possible that your property management company is correct, because unlike 718 Fla. Stat. and the Florida Administrative Code, 720 Fla. Stat. contains very little procedural guidance on how to conduct an election. Therefore, the answer will depend entirely on what your association’s governing documents say. Note that if the governing documents are silent, then the statute will control; meaning, your association will not be able to follow the secret ballot system. Therefore, we commend that you consult with the association’s attorney in order to obtain their opinion as to the procedures that your association needs to follow in order to have a valid election.
Q: I live in a condominium building, and we just had our election. When we were counting the ballots, we noticed that several of them were signed. We were concerned that this made the ballot invalid, so we didn’t count those ballots. Should we have counted them?
-R.K., Vero Beach
A: This is an interesting question, and one that is debated among attorneys who practice in this area of law. Some attorneys have the opinion that in order to preserve the secret ballot procedure, any deviation from the secret act of the voting process (which includes not only signing the ballot, but also if a proxy that is inside of the smaller envelope) means that the vote is invalid. Other attorneys have the opinion that the owners have the right to waive their privacy when voting for the board members. We believe that the owners have the right to waive their privacy. Please note, however, that it is critical that the outer envelope is in compliance with the statutory requirements (i.e. signed by the owner with their name printed and the unit number and is properly sealed).
Avi S. Tryson, Esq., is Partner of the Law Firm Goede, Adamczyk, DeBoest & Cross. Visit www.gadclaw.com or to ask questions about your issues for future columns, send your inquiry to: firstname.lastname@example.org. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.