Sunday, April 13, 2014

Is anyone performing background checks on directors?


Florida law has been changed over the years to clarify that convicted felons whose civil rights have not been restored are not eligible to serve on a community association board. Other states similarly restrict felons from serving on volunteer boards. In addition, members who are 90 or more days delinquent in the payment of assessments are similarly not eligible to serve on the board.



However, knowing the law and enforcing it are often two entirely different matters.

From a practical standpoint, how do community associations actually determine the eligibility of their board candidates? While the Florida statutes do not specifically address these issues, do you think it is important for your community to also know in advance if a candidate for the board has a personal problem with budgeting, previous litigation, prior rules violations in another community, etc.? How likely is it that any personal judgment issues will bleed over into the judgment a director needs to exercise while serving on a community association board?

When I volunteered to serve as a chaperone on my kids' school field trips, I was rightfully asked to undergo a background check before being approved. I understood the significance of my role as a chaperone and readily submitted to the lengthy questionnaire, fingerprint and background check required by the Broward County school system. When I ran for my HOA Board, I was asked no questions nor did I submit any paperwork to run.

While I am not in favor of unnecessary hurdles that make it less likely that people will volunteer to serve on their association boards, I do think most reasonable board candidates would not object to some level of due diligence to ensure that they are eligible to serve on the board.

So how does your community handle this issue? Do you:

1.      Ask the candidates to fill out a questionnaire confirming if they have been convicted of a felony and if so, whether or not their civil rights have been restored? In Florida, many board candidates submit candidate information sheets touting their credentials to the membership but few delve into any darker issues in those sheets. Does your board ask for additional information needed to determine eligibility?
2.      Do you ask candidates who fall into the category above to provide proof that their civil rights have been fully restored, including the right to bear arms?
3.      Do you check to determine that all candidates are current in the payment of monetary obligations to the association?
4.      Have you amended your governing documents to require more extensive background checks of director candidates including a check for a history of previous bankruptcies, credit issues, litigation, etc.?
5.      Have you done nothing with regard to director background checks?

Far too often, communities learn that there is a director on the board who is not statutorily eligible to be there. Finding someone has a "troubled past" is not always an indication of future trouble. However, wouldn't it be easier if standard election procedures were updated to provide for some level of director background checks to ensure that potential problems are averted?

2 comments:

  1. Donna, I have never requested background checks on candidates for board. Board members usually depend on the honor system - same for members signing a form that says they've read the documents.

    In 2005 when I was studying for the CAM Exam, there was another requirement (for running for a board position) that I believe is often overlooked. That is that the candidate be "a natural". I always took that to mean a natural born citizen. I asked my HOA attorney and he'd never heard of it. Can you comment?

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  2. I have never heard of that either but I suspect as you did that the question pertains to one's citizenship status which is really irrelavant when it comes to board membership. A better question would be whether the candidate is a record title owner in the community as many governing documents restrict board membership to owners only.

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