Tuesday, August 29, 2017

Could your community association turn into the next Confederate symbol battleground?

In light of recent events in Charlottesville, it should come as no surprise that symbols mean different things to different people and there will unfortunately continue to be disagreements (and at times violence) when it comes to interpreting whose rights deserve protection as they pertain to those symbols.

While it is not likely that a homeowner in a private residential community would erect a statute of a controversial figure in his or her front yard, it is possible (and has, in fact, happened) that a resident may choose to display a flag (Confederate or otherwise) which is deemed offensive by some of his or her neighbors or by the Board of Directors.

In the context of a mandatory community association, just how much can or should a volunteer board regulate the display of symbols that some residents may find offensive? There's not much to debate if a resident chose to erect a Nazi or Isis flag in your community as most rational people would support removing those flags as clear symbols of hatred.  However, let's discuss a timely example of a less clear-cut albeit controversial and divisive symbol-the Confederate flag.  Would the Board of Directors in a Florida HOA have the right to request an owner to remove that flag?

In the absence of any Board Rule or provision in the recorded governing documents prohibiting certain types of flags, the answer is NO.

In Florida, the Legislature saw fit to protect the rights of its citizens to fly certain types of flags regardless of any association restrictions to the contrary.

Section 720.304(2), F.S. provides as follows:

(2)(a)    Any homeowner may display one portable, removable United States flag or official flag of the State of Florida in a respectful manner, and one portable, removable official flag, in a respectful manner, not larger than 4 1/2 feet by 6 feet, which represents the United States Army, Navy, Air Force, Marine Corps, or Coast Guard, or a POW-MIA flag, regardless of any covenants, restrictions, bylaws, rules or requirements of the association.

You may not be aware that in Florida, a law was passed in 1961 to specifically address the Confederate flag.

Florida Statute Section 256.10 provides as follows:

256.10    Mutilation or disrespect for Confederate flags or replicas.- No person shall publicly mutilate, deface, defile, defy, trample upon, or by word or act cast contempt upon the flags of the Confederacy, or replicas thereof, for crass or commercial purposes; provided however that nothing contained herein shall be construed to prevent or prohibit the use of such flags for decorate (sic) or patriotic purposes.

The foregoing statute does not specifically provide that a resident in an HOA is entitled to fly a Confederate flag. The statute does prohibit certain disrespectful handling of such a flag and clarifies that flying a Confederate flag for decorative or patriotic purpose does not constitute casting contempt or disrespect upon that flag.

So what would your association do if an owner insisted on flying the Confederate flag? What would your Board's response be if the flying of that flag sparked protests inside your community?

Your Board could pass a rule which prohibits the flying of all flags other than those currently protected by Florida law.  The protection of the Confederate flag from desecration found in Section 256.10, F.S. does not appear to confer the right to fly it freely in the face of an association's covenants, restrictions, bylaws, rules or regulations.  According to the statutory construction principle of expressio unius est exclusio alterius, the mention of one thing implies the exclusion of another and Section 720.304, F.S., does not protect the Confederate flag in its enumerated list of flags deserving such protection from a community's private covenants.

If your Board does not have a rule regarding flags prior to an owner attempting to fly a flag which draws offense, your board will have a harder time confronting the issue.  If the flag in question draws protests and/or vigilante justice in the form of residents removing or destroying the flag, the Board could seek its removal (or prohibit its resurrection) based on the nuisance provision in its Declaration but that is not the soundest legal position to take.  It would be far smarter and safer to pass a rule which prohibits flags other than those listed in Section 720.304, F.S. in order to avoid controversy or enforcement issues in the future.

So what could the Confederate flag-flying resident argue if an association has an otherwise enforceable rule?

1.   That his or her freedom of speech is being violated.  Since a Florida HOA is not deemed to be a state actor, this argument is almost certain to fail.

2.    That Section 256.10, F.S. allows him or her to fly the Confederate flag. This argument is almost certain to fail as well given that the statute does not confer a right to fly such a flag in the face of  private restrictions; it merely sets for the behavior which must be observed with regard to the flag.  Arguably, the 1961 Florida law is unconstitutional since the U.S. Supreme Court has already ruled that one can disparage or even burn the U.S. flag as a form of politically protected speech.

The takeaway here is that communities must be proactive in identifying potential conflicts and creating rules in advance to address same. If you don't have a flag rule currently in your community association you should consider adopting one.

Wednesday, August 9, 2017

When Differences turn into Dysfunction: Why Your Board of Directors Needs a Code of Conduct

The role of board members in a community association is fairly straightforward:  keep informed on the association's business operations; be familiar with and come prepared to discuss the agenda items for upcoming board meetings; encourage and participate in constructive, businesslike discussions of those agenda items; and use your judgement to represent the community and its members in the way you conduct yourself as a board member and in the way you decide the issues that come before the Board. Unfortunately, some community association board members do not follow these guidelines and some create a level of dysfunction that is highly unproductive.  The result is usually a community which devotes a disproportionate amount of time and resources to argument and personal attack rather than to constructive action for the good of the community. A certain amount of discourse and debate amongst board members is not only healthy, it can be productive when crafting policies and protocols resulting from differing viewpoints.

What happens, however, when differences turn into dysfunction?

Naturally, it is counterproductive when board members find themselves at odds with each other. In some communities these power struggles can manifest in any of the following ways:

  • A Board  Member demanding frequent and heightened access to the association's books and records including privileged information for his or her own nefarious purposes;
  • A Board Member disclosing privileged information including, at times, even disclosing litigation strategy to adverse parties;
  • A Board Member refusing to attend meetings if doing so prevents a quorum from being achieved;
  • A Board Member refusing to cast his or her vote;
  • A Board Member refusing to turn over association books and records in his or her possession either while serving on the Board or after his or her term expires;
  • A Board Member slandering fellow board members or the manager or unit owners who express contrary opinions;
  • A Board Member filing a complaint with the DBPR; and
  • A Board Member inciting and encouraging a recall of fellow directors.
Some of the foregoing director actions (such as a DBPR complaint and a recall action) may be justified if the board as a whole is dysfunctional and the dissenting voice on the board is attempting to steer the board in a better direction. However, some directors fail to understand that being part of the board means accepting that decisions are often made by consensus and not by unanimity; gracefully accepting that your fellow directors may not always (or ever) agree with you should be a job requirement for service on the board. Some directors who are at odds with their fellow board members use tactics which are not designed to resolve the issues but rather to inflame them. More importantly, a fractured board more often than not leads to a fractured community.

For directors who believe they are entitled to greater access to the association documents, the answer is "No", a director is not entitled to any greater access to the association records than an ordinary association member unless that director has been tasked by the Board with certain duties which require such access. For example, a director serving on the Screening Committee should have access to the rental and sales applications.

I am often asked by boards dealing with one or more directors who have a personal agenda which conflicts with the board's goals if that director can be removed from the Board. Again, the answer is "No", a director cannot be removed from the board by his or her fellow directors; only the members in a Florida community association can remove a duly elected or appointed director unless one of the limited statutory disqualifiers applies.  However, a board can, by majority vote, remove a director from holding a particular office such a President, Vice President, Treasurer or Secretary. Doing so may not solve the problem but it can prevent a rogue director from convincing vendors and other third parties that he or she has authority that simply does not exist by virtue of no longer having a title.

Many association governing documents define the scope of board authority as a whole but do not address the mechanics of how a board comprised of different individuals can work together successfully for the betterment of the community.  This is where a thoughtful Code of Conduct can fill in the gaps.

A Code of Conduct should address the following areas for your Board Members:

  • Confirming how conflicts of interest can be identified and avoided and which conflicts must be disclosed;
  • Confirming which directors have authority to sign contracts and negotiate and otherwise deal with vendors and professional service providers;
  • Outlining respective officer and director roles;
  • Creating a communication policy and email protocol both internal and external; and
  • Creating basic expectations for board member service and professional decorum.
In the aftermath of Florida's 2017 Legislative Session which created heightened potential liability for directors in connection with certain basic association operations, according to insurance expert Lou Meskin, some insurance companies are already discussing whether or not a Board Member Code of Conduct should become mandatory or, at a minimum, preferred for the issuance of Directors and Officers coverage.  While a Code of Conduct won't be the panacea some boards are seeking, it can lay the groundwork for more successful association operations.

If you'd like more information about creating a Code of Conduct for your Florida Board of Directors, please email me at dberger@bplegal.com.