of the Ombudsman
By Juliette Guilbert, Freelance writer in Miami, Florida.
Article Courtesy of "Common Ground"
From the July/August 2007 issue
an association ombudsman is good enough for
Claire Fortini moved into the Seaport Oceanfront Condominiums in
was such acrimony between two of our three board members that nothing was
getting done," Fortini says. "The association president was caught
between the developer's representative and the homeowner member. The board
meetings would end in shouting matches, and no business was conducted."
went through three board presidents from January to August ," she
says. "Many residents had never lived in a condominium before and had no
clue of the law. We were looking for somebody to help us out of our
morass." That somebody was
next thing I knew, I was board president," she says. By the end of
September, the board had hired a new manager and attorney, created a new
budget, and begun to address maintenance issues. "I have no idea how
things would have turned out without the ombudsman's help. Maybe the state
would have had to take over, we were in such turmoil."
many in the community association industry—including attorneys, managers and
some board members—view the ombudsmen with trepidation, fearing state
meddling and reams of red tape. "Resolving homeowner disputes and
building effective community governance cannot be outsourced to the
statehouse," says Andrew Fortin, CAI's vice president of government and
public affairs. "It's not an efficient use of resources to have state
employees sorting out disputes relating to private, contractual agreements
between neighbors. Our focus is on empowering individuals to solve these
problems within communities rather than to place that burden on the
is more than mere rhetoric. Since 2004, CAI has promoted Rights
and Responsibilities for Better Communities, 42 principles to help
association-governed communities promote harmony, enhance communication and
has successfully opposed ombudsman legislation in
Law professor, Frank Askin, says that an ombudsman is needed in
community association ombudsmen do exist, the job can be fraught with
job was being carried out too effectively, according to normal operating
agrees. "From day one, the ombudsman office had serious problems because
there was no financing," he says. "The attorneys didn't like it
because somebody was watching what they were doing, and sometimes what they
are doing doesn't need the light of day. And with all kinds of maneuvering,
they finally got the governor to fire him. A lot of owners thought that was a
the time of Rizzo's firing, a DBPR spokesperson interviewed by the Miami
Herald said the retired physician had failed to follow state
procedures such as submitting time sheets, and had refused to respond to a
records request from the
was involved in a lengthy, costly legal battle with his own board," she
says. "A lot of his proposals seemed to indicate a bias. He had a very
clear direction for that office that would have given him a lot more power and
a much bigger salary than initially envisioned, and that's where he ran into
Bush named Carroll the new ombudsman immediately after Rizzo's firing. A
former regulatory prosecutor with the state Department of Health, Carroll had
no experience in community association law, but ruffled fewer feathers in her
first year on the job than did Rizzo. Carroll stresses that she is an unbiased
advocate for all. She gets high marks from people like Berger, who praises her
emphasis on education about, rather than enforcement of, condo law.
"Danille is great," Berger says. "We've worked with
her—education is the way to go. You've got the division doing enforcement
already." Even Rizzo praises Carroll's ability to "network with the
says she's spent much of the past year learning about community association
issues and talking to residents, boards, and attorneys. Although her office is
asked "on a daily basis" to help resolve intra-association disputes,
Carroll says, "It's not just owners. We get calls from a lot of board
members and attorneys. It's a good mix of phone calls."
according to State Rep. Julio Robaina, who pushed for the ombudsman's position
in 2004, it was ultimately the need to help owners—especially in disputes
with their associations—that drove the legislation that created Carroll's
office. "I felt owners needed somewhere to get information, help, and
training to understand the bylaws and the election process—a neutral party,
who would be there for the average citizen who was having problems in the
association," Robaina says.
course, many industry professionals and board members believe that more state
interference is the last thing associations need and maintain that the vast
majority of communities are not, in fact, plagued by dissent and malfeasance.
CAI's California Legislative Action Committee last year helped defeat a bill
to establish a community association ombudsman in that state. Committee
administrator Skip Daum says that the group supported the portion of the bill
that created homeowner education programs, but opposed the creation of an
ombudsman with enforcement powers.
would have levied fees of $40 million on homeowners to create a new agency
that would have told associations what to do," he says. "If they
failed, they'd be fined."
echoes the cautions issued by many in the community association industry about
the cost of an ombudsman. Lucia Anna "Pia" Trigiani, Esq., a member
of CAI's Virginia Legislative Action Committee, says that when
some states, other agencies perform some of the functions of an ombudsman. In
state ombudsman would have no teeth," she says. "For instance, if
your board violates the open meeting law, now you can take them to the OAH,
which is going to order them to cease and desist and fine them." The OAH
also has the power to turn over boards it deems repeat offenders to the state
attorney general, who has the right to remove them.
Ekmark, Esq., co-chair of CAI's Arizona Legislative Action Committee, says
that his group has some concerns about the system. "There's no statute of
limitations, the filing fee is really low, there are no real rules of
evidence, and there is an unlimited ability to fine associations," he
believes such criticisms are unfounded: the filing fee for the self-funded
program is $2,000, she says, far higher than the $50 it costs tenants to file
OAH complaints against their boards. As for the fines, she says they are
probably too low.
disagreement between Haruff and Ekmark gets to the heart of the ombudsmen
had a case in Boca [Raton] where a board president embezzled $650,000,"
he says. "The homeowners tried for a year to get the documents, but
instead got nasty letters from attorneys, and one even got sued for
harassment. That's why we need the ombudsman to have a little power."
says that he envisions the ombudsman as the point person for condominium fraud
programs that will train detectives to investigate alleged crimes. "A lot
of times, people want these problems to continue, simply because there's money
to be made," he says. "When there's a problem, boards call the law
firms that represent them, and they bill."
has brought the bureaucracy from a regulatory agency into the job," she
says. "Managers have to cross t's and dot i's on just about everything.
It's time consuming." One of the biggest headaches, Scott says, is the
sometimes-massive document requests. "I had one request for a copy of
every design review submitted for paint color changes with no time
period," she says. "This is an association of 15,000 homes. There is
no way to comply without hiring a full-time person for a year."
Farrah, chair of CAI's Nevada Legislative Action Committee and a property
manager with Capital Consultants Management Corporation, agrees that the
process can be bureaucratic. "It takes forever to get a response,"
she says. "But we're definitely seeing that change. The new ombudsman has
only been in place for about a year, but she's made more strides in that time
than we made in the nine years before that."
that's because she's had experience with warring parties. Nevada Common
Interest Community Ombudsman Lindsay Waite says she was prepared for her new
job by her experience as a public defender in
duties include educating homeowners and boards about their rights and
responsibilities, maintaining a state registry of community associations, and
reviewing homeowner complaints. She meets with each party individually, then
sets a conference date to try to work it out—about 28 meetings a month. If
they can't come to an agreement with Waite's help, they proceed to the Nevada
Real Estate Division's alternative dispute resolution program, a prerequisite
to going to court.
get a number of cases where the homeowner didn't pay a small fine, and with
penalties it grows into a large fine," she says. "I don't say one
side or the other side is right. I let them talk it through." In many
cases, miscommunication is the problem. When misbehaving boards are informed
of the law, they frequently comply.
also is working on education initiatives—meeting with managers' groups,
association attorneys, board members, and homeowners. Like Carroll, she prizes
her role as a neutral resource for all, rather than a champion for one or the
other. "Some parties have talked about this position advocating for the
homeowners," she says. "But I think it's good to have a neutral
person and for parties that are in contention to have at least one chance to
sit down and talk."
states considering ombudsman programs, the unanswered question remains
enforcement. Ombudsmen can educate, facilitate, and mediate, but when these
measures fail, who should take the reins? The answer, of course, depends on
whom you ask: Most in the industry remain chary of handing more control over
to the state, but many homeowners are eager to see more enforcement of the
laws that govern common interest living. Ombudsmen as neutral facilitators may
be palatable to all; the idea of the ombudsman as a state regulatory agency
will have to make its way through the (most likely contentious) legislative