The Association Can Inform the Members but Not Tip the Scales!
Naturally there is the sense that incumbent board members have access to emails and other information that might not be readily available to other candidates particularly if those email addresses were not provided in conjunction with a consent to receiving notices electronically. Letters, candidate information sheets and other communications that incumbent board members might distribute along with the annual meeting notice and voting materials should be scrutinized to ensure that they do not smack of campaigning.
Rule 61B-23.0021(8), Florida Administrative Code, prohibits any endorsement in the mailing of the second notice of election. While you may be tempted to include information in that Second Notice that refutes any misinformation or outright lies found on other candidates’ information sheets, you need to discuss with association counsel what you can and cannot communicate to your members.
In the arbitration case of Randolph v. Decoplage Condominium Association, Inc., Case No. 02-4995 (Final Order / December 11, 2002) the Board included a letter with the Second Notice of Annual Meeting and Election which commented on and praised several candidates who were incumbents, advising that these directors had helped the Association save millions of dollars on various projects. The arbitrator found that the board’s mailing did violate Rule 61B-23.0021 (18) FAC and the association was ordered to hold a new election.
In the arbitration case of Yanniello v. Arrowhead Golf & Tennis Club Number One Association, Inc., Case No. 2003-05-0146 (Final Order / January 7, 2004) the Association president commented negatively about the contents of another candidate’s information sheet and included that commentary in a letter included with the Second Notice of Annual Meeting and Election. This action was also found to be a violation of Rule 61B-23.0021(8) FAC.
So are board members simply unable to tout any of their achievements?
The answer is no. Boards can and should communicate regularly with their members to outline the types and scope of projects they’ve undertaken on the members’ behalves. I regularly recommend a Good and Welfare report be compiled annually particularly as many members neither attend board meetings nor read the minutes in lieu of such attendance. That report can address the maintenance, repair and improvement projects the Board started and finished, the amount of money collected from delinquent owners
In addition to discussing their accomplishments, Board members can share their opinions so long as they are not included in the Second Notice of Election. In the case of Weiss v. International Village Association, Inc., Case No. 2015-01-1888 (Summary Final Order/ January 19, 2016r, the Association president made certain endorsements on an unofficial website blog and that communication was held to be permissible.
In the case of Short v. Windhover Association, Inc., Case No. 2012-01-5922 (Summary Final Order/ July 26, 2012) an endorsement letter from the association manager on management company letterhead was similarly upheld as permissible although I routinely advise management professionals to avoid the politics involved with association elections. Lastly, in the case of Held v. Board of Directors, Gabriel Towers Condominium Association, Inc., Case No. 02-4510 (Scheuerman / Final Order Dismissing Petition / February 27, 2002), the Association’s newsletter contained information which was critical of a candidate and that communication was not ruled to be a violation of the Administrative Rules.
The Association needs to strike a balance between distributing the information members need to truly evaluate the slate of candidates while not using their control of the association’s operations including communication portals to their unfair advantage.