CONDO ELECTION -- A CASE FOR EINSTEIN?

An Opinion By Jan Bergemann 
President, Cyber Citizens For Justice, Inc.

Published August 5, 2010

I was always under the impression that the election provisions for condominiums [FS 718.112] are reasonably easy to understand. I am not talking about cheating and other election shenanigans. I'm talking about just the simple procedure.

What is so difficult about understanding this short sentence: "Any unit owner or other eligible person desiring to be a candidate for the board must give written notice of his or her intent to be a candidate to the association at least 40 days before a scheduled election." In short: This is the cut-off date for submitting your candidacy papers, showing that you are an eligible candidate. Isn't it common to file papers to let people know you want to run for office?

But not so in the GOLFSIDE VILLAS CONDOMINIUM ASSOCIATION, INC. in Winter Park. After the deadline to declare the candidacy for the upcoming annual election on December 2, 2009 passed, only one candidate had submitted the necessary notice of intent as required. According to the statutes, no election was required and the sole board member had the right to appoint two board members of his choice.

That surely didn't go over too well with the folks in power and the discussion started by phone and e-mail. Even the community association manager and the attorney chimed in, showing that they all had no clue how the process was really supposed to work: The only board member will appoint two more to fill the empty seats. When one of the owners -- referring to DBPR guidelines -- tried to clear up the issue, the attorney sent out the following e-mail, referring the owner to documents of no actual relevance to the election process.

I guess attorney Luna had overlooked the fact that House Bill 995 -- enacted in 2008, had removed the ability of condominium associations to opt out of the statutory election process [FS 718.112(2)(d)8].

No matter what information owners provided showing that their interpretation was correct, the people in charge ignored the facts and sent out an amended first notice of election, “rescheduling the election and annual meeting for January 25, 2010, on the basis that the original first did not conform to the statutory requirements.” 

The only candidate who followed the Florida statutes was ignored -- and the people in power conducted business as usual, voted in a new board and continued like nothing had ever happened, until the association received a formal Warning Letter from the Bureau of Compliance, dated January 26, 2010. This letter confirmed what owners had said all along: "No election was necessary and the only candidate was the 'new board' with the right to appoint the remaining directors."

That letter sure stirred up a hornet's nest. The folks in power scrambled to find a solution. Backroom deals were offered: "If you appoint two directors of our choice and promise to keep the management company, we play along." When that offer didn't find takers, the scare tactics were pulled out of the bag: "If you go forward we will immediately recall you and tell all owners that your actions are reason for outrageous legal fees." In other words: Let's blame the guy who followed the statutes for our mistakes.

When the only legitimate board member refused to make "deals" behind closed doors, the manager took action and wrote a NOTICE TO SHOW CAUSE AND REQUEST FOR HEARING to the Bureau of Compliance, dated February 8, 2010. In that letter community association manager Donovan M. Staley claimed that "the association strongly believes it has taken and continues to take any required actions for a legal and enforceable election based on the Association's By-Laws, Florida Statutes and Florida Administrative Code."

And that's it so far! About six months later and the DBPR hasn't moved one bit. There is not even a date set for a hearing yet -- and the first notices for the next election are due in about two months. As fast as the DBPR Bureau of Compliance and Investigator Kevin Dusinberre acted, the letter from the association obviously froze the DBPR in its tracks. Nothing in six months and the board that came to power in an illegal election -- according to the DBPR -- is doing business as usual, courtesy of the DBPR.

Like we always say: The best law is only as good as its enforcement.

And in this case I definitely don't blame any owner and/or board member for the failure to follow the rules. It's pretty obvious that the two paid professionals gave them wrong advise and created this election chaos. They are the ones who should pay for the whole mess!

But that is still no excuse for the DBPR to allow an illegal board to run the association business. The owner, who was the only one who actually followed the Florida statutes, received this generic answer when inquiring to the DBPR about the progress of this case: "As we discussed the investigation has been recommended for administrative action and is currently being addressed by the Division’s legal section. Unfortunately because the case is pending legal actions we can not disseminate information regarding the status of the case other than that it is pending. The Division understands that this issue involving the election is a time sensitive matter and that many association members are awaiting the resolution. We hope to have this case resolved in a timely manner, while addressing its complexity and insuring its completeness."

That opens the door for one final last question: WHAT IS A "TIMELY MANNER"?