FIGHTING STAGGERED TERMS? FAVORING TERM LIMITS?

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

Published August 2, 2008

Lots of folks wonder why many owners are fighting to eliminate staggered terms and why the same people are trying to get term limits enacted for boards of directors of homeowners' associations?

The explanation is really easy: To fight rigged elections and/or a never-ending dictatorship.

We have always said that the election provisions in FS 720.306(9) are insufficient and leave everything open to interpretation by people who have a very personal agenda: Staying in power!

The latest sad example of rigging elections can be seen in the election arbitration case of the SPANISH ISLES PROPERTY OWNERS' ASSOCIATION, INC. in Boca Raton. This association became "famous" during the hearings of the SELECT COMMITTEE ON CONDOMINIUM & HOMEOWNERS ASSOCIATION GOVERNANCE.

The board of the association was "invited" to show up with certain documents at Committee meetings nearby, but then waited for a subpoena -- on advice of counsel -- and spent lots of money to avoid having to show the records requested. The association's law firm is Randall K. Roger & Associates, P.A. from Boca Raton -- a law firm that made a lot of "negative" headlines recently and seems to have a reputation among "difficult" board members to be even willing to defend the seemingly indefensible!

Representative Julio Robaina accused Randall Roger of "stonewalling" during the meeting of the Select Committee in Tampa. When Roger became even more uncooperative, Robaina even accused Roger of “playing games."

Considering the documents available, the board of the SPANISH ISLES PROPERTY OWNERS' ASSOCIATION, INC. in Boca Raton probably needs an attorney who doesn't care if the board he/she defends is using a scheme to stay in power and makes elections a mockery. Based on "staggered terms," these board members stay in power forever -- if so desired. Led by "president" Donna Don any opposition is quickly bad-mouthed and threatened. And if you live in this community and have kids or pets you better beware before daring to speak up. Otherwise an anonymous call will get you a visit from Children's Services or Animal Control. Already happened to a few owners in that community who are known for views opposing the board. If that doesn't work, anonymous letters to employers are another way to get revenge for speaking up against board members who circumvent fair elections by "timely resignations" and new appointment to long terms.

According to the Summary Final Order this is how the scheme works

It is well described in the

FINDINGS OF FACT

1. The board of the Association consists of nine directors. The governing documents provide that the directors will serve staggered three year terms, with three seats coming up for election each year.

2. The annual election on February 27, 2007, selected new directors for "seat 1", "seat 2" and "seat 3", because the terms for those seats expired at that time.

3. Because of certain maneuvers by sitting directors, seat 1, seat 2, and seat 3 had been vacated before the end of the term.

4. On August 24, 2006 the director in seat 1 resigned. Five remaining board members immediately appointed her to serve as the director for "seat 7", which has a term continuing to 2009.

5. On September 1, 2006. the director in seat 2 resigned. Five remaining board immediately appointed her to serve as the director for "seat 4", which has a term continuing to 2008.

6. On December 10, 2006, the director in seat 3 resigned. Five remaining board members immediately appointed her to serve as the director for "seat 5", which has a term continuing to 2008.

7. Seat 5 had become available because the director occupying that seat had been appointed to "Seat 9". The previous occupant of Seat 9 had died. This replacement was accomplished apparently without a resignation on the part of the then "Seat 5" director.

7. The reasons given In the resignation letters lack credibility in light of the immediate reappointment of the directors to longer terms.

8. In August 2006 a non-board member had been appointed to fill "Seat 6"

9. Article V, Section 3 of the By-laws of the Association provides that, in the event of the death, resignation or removal of a director, his successor shall be selected by the remaining members of the board and shall serve for the unexpired term of his predecessor.

10. Petitioner participated in the election of February 27, 2007. He was nominated from the floor for one of the vacant director seats. There were seven candidates in all. Petitioner was not one of the top three who were elected. Petitioner does not challenge the election of those three individuals to the board.

According to the arbitrator the "scheme" is obvious, but it is still legal because "staggered" terms are allowed.

A board member, unwilling to participate in this scheme, was quickly recalled, but written petitions required by Florida statutes still couldn't be produced. A DBPR arbitrator was asked to recuse himself, after being accused of not giving the association an impartial hearing. Attorney James Steven Hudson from the law firm of Randall K. Roger & Associates, P.A. pulled all the strings in a RESPONDENT'S MOTION FOR RECUSAL OF ARBITRATOR to make the arbitrator look like the "bad guy" -- because the arbitrator sent the copy of a petition signed by homeowners who wanted to stay anonymous as usual -- to the petitioner.

I guess the real reason for the Motion For Recusal was the fact that the arbitrator dared to ask for the actual written recall petitions and didn't buy the story that the recalled board member "stole" these petitions.

In my opinion it's a shame that board members like this -- with the help of willing attorneys -- can run a whole community and Florida's laws don't prevent this. It is time that our legislators put a stop to it. And maybe -- just maybe -- the Florida BAR should look into the way some of these attorneys are doing business. Attorneys should represent the interest of the whole community -- meaning all dues-paying members -- and not just the few board members who are signing their checks.