Statutes require board members to become certified

Q: I read your blog on “board certification” in condominiums and have suggested to our president that all board members take such a course. I received no reply. I sent a document production request via certified mail and received as proof the “notice of intent to become a candidate” forms with the required state certification quotation that they have read all of the documents, etc. Does the state accept this type of board certification?

– E.C. (via email)

A: Yes. Over the past several years, all of Florida’s community association statutes have been amended to require that board members be “certified.” Newly elected or appointed board members must, within 90 days of being seated on the board, sign a form that provides that the board member has read the association’s governing documents, and that such board member will work to uphold such documents to the best of his or her ability. Further, the board member must agree that he or she will faithfully discharge his or her fiduciary duty to the association’s members. In lieu of signing this written certification, a newly elected or appointed director may instead provide a certificate demonstrating that they have satisfactorily completed an approved educational course. A prospective board member can attend and complete such an educational course up to one year in advance of taking a seat on the board.

In the event that a board member fails to either complete an educational course or sign the required form within 90 days of their election or appointment to the board, such board member is suspended from service on the board until they complete the requirement.

Although these laws were written with good intentions, they are essentially meaningless. Board members who wish to “do nothing” can simply certify that they have read the documents and will uphold their duty, and there is really no way to prove or disprove whether they have done so, nor any enforcement mechanism in the statute.

There is no bigger supporter of board member education than me. I have given educational presentations to more than 10,000 board members and managers over the course of my career in this field. I have found that the majority of board members come to these classes to learn about how to better govern their community, whether legally required or not. There is certainly a substantial percentage of people who serve on boards who do little to learn how to better do the job. Absent mandatory education, there is probably not much that can be done about that. Mandatory board education is a policy question as to which reasonable people can disagree, perhaps depending on one’s view of the proper role of governmental regulation of private contractual relationships.

Q: I serve on a condominium association board. I’ve read about fining committees. Not surprisingly, no one in our community wants to serve on such a committee. This makes it almost impossible to enforce our rules. Our association’s governing documents state that people being fined must have a hearing before the board of directors. Do our documents apply or do we still need a fining committee to levy fines?

– M.M. (via email)

A: If your association’s governing documents provide that a fining hearing need only be held before the “board of directors” before a fine can be imposed, the documents directly conflict with the Florida Condominium Act. The law provides that prior to fines being imposed, a hearing must be held before a committee of unit owners who are neither board members nor persons residing in a board member’s household.

In this case, the Florida Statutes trump governing documents. If your association is having issues recruiting volunteers to assist on the fining committee, the board should consider adding this to the agenda at the next association meeting. Discussing the impact of not having a fining committee could motivate unit owners to get involved.

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