|
OFFICERS AND DIRECTORS
In 2013 the Florida Legislature created FS 720.3033
-- Officers and Directors, starting with mandatory education:
FS 720.3033(1), with new requirements
added in the last two years. There is no more signing a "I know it all
affidavit". Directors now must complete a minimum 4 hour seminar of a
department-approved educational curriculum. A great step in the right
direction. But ZOOM seminars are still allowed, making it possible for
directors to get the required certificate
without even listening to the seminar.
Other important provisions were added in 2023/2024:
Directors have to disclose any possible conflict of interest, if
contracts are being approved at a board meeting.
In order to stop fraud, embezzlement, kickbacks and scams provisions
were added to this paragraph, describing in detail what kind of
punishment should be doled out to directors and officers violating laws
as described.
For more detailed info please see: FS 720.3033
(3) +
(4)
Another very important provision of this chapter: The association shall
maintain insurance or a fidelity bond for all persons who control or
disburse funds of the association. See
FS 720.3033(5)
720.3033 Officers
and directors.
(1)(a) Within
90 days after being elected or appointed to the board,
each director must submit a certificate of having
satisfactorily completed the educational curriculum
administered by a department-approved education
provider.
1. The
newly elected or appointed director must complete
the department-approved education for newly elected
or appointed directors within 90 days after being
elected or appointed.
2. The
certificate of completion is valid for up
to 4 years.
3. A
director must complete the education specific to
newly elected or appointed directors at least every
4 years.
4. The
department-approved educational curriculum specific
to newly elected or appointed directors must include
training relating to financial literacy and
transparency, recordkeeping, levying of fines, and
notice and meeting requirements.
5. In
addition to the educational curriculum specific to
newly elected or appointed directors:
a. A
director of an association that has fewer than
2,500 parcels must complete at least 4 hours of
continuing education annually.
b. A
director of an association that has 2,500
parcels or more must complete at least 8 hours
of continuing education annually.
(b) A
director who does not timely file the educational
certificate is suspended from the board until he or she
complies with the requirement. The board may temporarily
fill the vacancy during the period of suspension.
(c) The
association shall retain each director's educational
certificate for inspection by the members for 5 years
after the director's election. However, the failure to
have the written certification or educational
certificate on file does not affect the validity of any
board action.
(d) The
department shall adopt rules to implement and administer
the educational curriculum and continuing education
requirements under this subsection.
(2) If
the association enters into a contract or other transaction
with any of its directors or a corporation, firm,
association that is not an affiliated homeowners'
association, or other entity in which an association
director is also a director or officer or is financially
interested, the board must:
(a) Comply
with the requirements of s. 617.0832.
(b) Enter
the disclosures required by s. 617.0832 into
the written minutes of the meeting.
(c) Approve
the contract or other transaction by an affirmative vote
of two-thirds of the directors present.
(d) At
the next regular or special meeting of the members,
disclose the existence of the contract or other
transaction to the members. Upon motion of any member,
the contract or transaction shall be brought up for a
vote and may be canceled by a majority vote of the
members present. If the members cancel the contract, the
association is only liable for the reasonable value of
goods and services provided up to the time of
cancellation and is not liable for any termination fee,
liquidated damages, or other penalty for such
cancellation.
(3) An
officer, a director, or a manager may not solicit, offer to
accept, or accept a kickback. As used in this subsection,
the term "kickback" means any thing or service of value for
which consideration has not been provided for an officer's,
a director's, or a manager's benefit or for the benefit of a
member of his or her immediate family from any person
providing or proposing to provide goods or services to the
association. An officer, a director, or a manager who
knowingly solicits, offers to accept, or accepts a kickback
commits a felony of the third degree, punishable as provided
in s. 775.082,
s. 775.083,
or s. 775.084,
and is subject to monetary damages under s. 617.0834.
If the board finds that an officer or a director has
violated this subsection, the board must immediately remove
the officer or director from office. The vacancy shall be
filled according to law until the end of the officer's or
director's term of office. However, an officer, a director,
or a manager may accept food to be consumed at a business
meeting with a value of less than $25 per individual or a
service or good received in connection with trade fairs or
education programs.
(4)(a) A
director or an officer charged by information or
indictment with any of the following crimes must be
removed from office and a vacancy declared:
1. Forgery
of a ballot envelope or voting certificate used in a
homeowners' association election as provided in s. 831.01.
2. Theft
or embezzlement involving the association's funds or
property as provided in s. 812.014.
3. Destruction
of or the refusal to allow inspection or copying of
an official record of a homeowners’ association
which is accessible to parcel owners within the time
periods required by general law, in furtherance of
any crime. Such act constitutes tampering with
physical evidence as provided in s. 918.13.
4. Obstruction
of justice as provided in chapter 843.
5. Any
criminal violation under this chapter.
(b) The
board shall fill the vacancy as provided in s. 720.306(9)
until the end of the period of the suspension or the end
of the director's term of office, whichever occurs
first. If such criminal charge is pending against the
officer or director, he or she may not be appointed or
elected to a position as an officer or a director of any
association and may not have access to the official
records of any association, except pursuant to a court
order. However, if the charges are resolved without a
finding of guilt or without acceptance of a plea of
guilty or nolo contendere, the director or officer shall
be reinstated for any remainder of his or her term of
office.
(5) The
association shall maintain insurance or a fidelity bond for
all persons who control or disburse funds of the
association. The insurance policy or fidelity bond must
cover the maximum funds that will be in the custody of the
association or its management agent at any one time. As used
in this subsection, the term "persons who control or
disburse funds of the association" includes, but is not
limited to, persons authorized to sign checks on behalf of
the association, and the president, secretary, and treasurer
of the association. The association shall bear the cost of
any insurance or bond. If annually approved by a majority of
the voting interests present at a properly called meeting of
the association, an association may waive the requirement of
obtaining an insurance policy or fidelity bond for all
persons who control or disburse funds of the association.
(6)(a) Directors
and officers of an association who are appointed by the
developer must disclose to the association their
relationship to the developer each calendar year in
which they serve as a director or an officer. Directors
and officers appointed by the developer must disclose
any other activity that may reasonably be construed to
be a conflict of interest pursuant to paragraph (b). A
developer's appointment of an officer or director does
not create a presumption that the officer or director
has a conflict of interest with regard to the
performance of his or her official duties.
(b) Directors
and officers must disclose to the association any
activity that may be reasonably construed to be a
conflict of interest at least 14 days before voting on
an issue or entering into a contract that is the subject
of the conflict. A rebuttable presumption of a conflict
of interest exists if any of the following acts occur
without prior disclosure to the association:
1. A
director or an officer, or a relative of a director
or an officer, enters into a contract for goods or
services with the association.
2. A
director or an officer, or a relative of a director
or an officer, holds an interest in a corporation,
limited liability company, partnership, limited
liability partnership, or other business entity that
conducts business with the association or proposes
to enter into a contract or other transaction with
the association.
|
|