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

Published April 20, 2011


If the board fails to inform the owners about simple rules -- like expiration terms of board members or identifying the number of open seats before asking for nominations -- any meeting has to end in disaster. It is clearly the obligation of board members, association attorney and management to know how many seats are open for election at the annual meeting. If the board members come unprepared, have no answers to simple questions and have to adjourn the annual meeting, it's definitely disingenuous to blame the membership for the extra cost.


During the initial Annual Meeting of the Marcus Pointe HOA it became pretty obvious that the sitting board members had hoped that the meeting would go smoothly and the membership would vote in favor of the candidate suggested by the board -- so the sitting board could go on with business as usual. 


According to the association bylaws, even the association attorney agreed that 4 seats are open  --  caused by prior misinterpretation by the board.  And now the sitting board members have to "invent" some new tactics to stay in power.


During the meeting it became more and more obvious that the board had underestimated the fury of many homeowners over the ill-advised JOINDER that forced homeowners to pay annually $480 to support a failing golf course that is not part of the homeowners' association.


This new situation forced the board to make a change of plans and find some ways to make it easier for their candidates to win so they can continue to hand over homeowners' money to the developer -- the owner of the golf course.


At the board meeting on April 6, 2011 -- just read the MINUTES -- the foundation was laid to prevent owners opposing the sitting board from voting -- or to make it outright difficult.


Bylaws can come in handy if a board wants to revoke voting rights of members who might not vote for their candidates. After deciding that there should be an election to fill four open seats, the board immediately discussed the possibility of revoking voting rights. And the BYLAWS of Marcus Pointe grant the board the power to suspend voting rights for non-payment of any assessments and infraction of rules. And despite association attorney Suzanne Blankenship from the Coastal Association Law Group being present at the meeting, she supported that move and didn't even bother to point the board members to the Florida statutes that surely supersede the bylaws. FS 720.305(3) only allows boards to "suspend the voting rights of a member for the nonpayment of regular annual assessments that are delinquent in excess of 90 days." And since the golf course assessment is definitely anything but a regular annual assessment, the voting rights of the folks who refused to pay this "SPECIAL" assessment can't be suspended according to Florida statutes. 
Blankenship prominently notes her membership in CAI (Community Associations Institute -- the trade organization of community association service providers).  Being a “specialized attorney,” according to her own words, Blankenship should know a lot about Florida statutes.   For example, Florida statutes supersede association bylaws if the provision in the statutes doesn't contain a "disclaimer" like: "Unless otherwise provided in the governing documents ...."  Clearly in this case there is no such disclaimer. During the meetings of the HOA Task Force in 2003-2004 the provision regarding suspension of voting rights was discussed at length, and in the end the Task Force members decided to only allow non-payment of regular assessments to be sufficient reason. Any other option had been abused previously. Specialized attorneys from the CAI are attempting again to change this in Senate Bill 530, pending in this year's legislative session. The proposed wording in FS 720.305: "nonpayment of any monetary obligation that is more than 90 days delinquent."


The CAI attorneys are working hard to remove what little consumer protection is left in the community association laws. But this bill is not enacted yet -- meaning the current version of FS 720.305 is still valid!


In other words, Florida statutes don't allow the board to suspend the voting rights of the owners who failed to pay the special assessment for the golf course.


It seems that the sitting board members up for re-election are scared that they will be ousted in a fair election. So they made voting more difficult by creating rules that make it harder to vote. Changing the rules in the middle of the game is neither fair nor is it "playing by the rules." But it seems that board members in power will do everything to stay in power -- no matter what.  No trick too dirty to stay in power?
Don't forget the upcoming annual meeting with election is a continuance of the meeting that took place on February 22, 2011.
The initial meeting was adjourned in order to get legal advice about how many seats are up for election. Proxies were collected and accepted for this initial meeting.

Any real proxy (Florida General Proxy) carries this sentence (or something similar): "The undersigned ratify and confirm any and all acts and things that the proxy may do or cause to be done in the premises, whether at the meeting referred to above or at any change, adjournment, or continuation and revoke all prior proxies previously executed."


Meaning that the proxies given for the first meeting should be still valid for the upcoming meeting.

Instead the board was sending out NEW PROXIES, stating at the bottom (exact wording): ONLY ORIGINALS PROXY ACCEPTED! I guess they better accept the proxies that were submitted for the initial meeting -- because they are valid according to generally accepted Florida law -- if no proxy with a newer date is submitted in the meanwhile.


And the latest news: The Scrolling sign reads: ID REQUIRED TO VOTE................

Now they are getting really tricky. The signature under the JOINDER -- that costs homeowners annually $480 -- surely wasn't validated with a valid ID -- but in order to vote at this meeting you better bring your valid ID. It will be interesting to see how the board deals with all the issues they created to keep some people from voting.


Video cameras will be watching. And board members and some of their supporters should reread Florida statutes before getting all excited about being videotaped. Check the wording in the Florida Statutes 720.306(10)  "RECORDING.-- Any parcel owner may tape record or videotape meetings of the board of directors and meetings of the members. The board of directors of the association may adopt reasonable rules governing the taping of meetings of the board and the membership."


It says nothing about taping only board members or speakers -- and not video taping the audience. As an attorney put it during one of the many legislative committee meetings in Tallahassee that have dealt with this issue: "In a public meeting -- and an HOA meeting is a public meeting -- there is no ‘reasonable’ expectancy of privacy." A State Representative said it in even stronger words: "If you don't want to be on a videotape -- don't go to a public meeting!"

Florida already has a bad reputation when it comes to FAIR ELECTIONS. The current board members shouldn't add another chapter to this sad reputation by trying to make voting difficult for eligible voters and proxy holders -- just in order to win the election with unfair methods.


It's all about financial responsibility and transparency. Homeowners shouldn't elect neighbors with a private agenda unwilling to conduct a fair election.

MEMBERS IN GOOD STANDING: MP Bylaws: Article VII - Powers and Duties of the

Board; Section 7.1: Powers: (b) Suspend the voting rights of a member during any

assessment levied by the Association. Such rights may also be suspended (60) sixty days for infraction of published rules and regulations by the members or their families.


Terms are to 90 days in arrears per Ms. Blankenship. GCA is February 1, HOA fees due March 1st. If Members are in arrears prior to these dates then voting rights eligible for withholding.

Motion made by Linda Sorrell, second (2nd) by John Peacock, the vote was unanimous by the Board to suspend voting rights of those not in good standing by/with the Association.


FS 720.305 (3) If the governing documents so provide, an association may suspend the voting rights of a member for the nonpayment of regular annual assessments that are delinquent in excess of 90 days.