Take It To The Board with Donna DiMaggio Berger
Take It To The Board with Donna DiMaggio Berger
The Do's and Don'ts of Association Committees with Becker’s Ken Direktor
Use Left/Right to seek, Home/End to jump to start or end. Hold shift to jump forward or backward.
Does your association have committees? Do you find them to be a helpful addition to association operations or a harmful "shadow board" with the potential to create liability for the association, its directors, and members? Host Donna DiMaggio Berger sits down with Ken Direktor, Chair of Becker’s Community Association practice, to peel back the curtain on the inner workings of committees: the good, the bad and the ugly. The following committees are discussed in this episode: Fining/Grievance; Architectural Control; Landscaping; Social/Entertainment; Document Rewrites; Budget; Neighborhood Watches and more. Find out which of these committees are vital to your community and which may be more problematic than they're worth.
From the dynamics of issuing fines to planning social events, they break down the landscape of community governance, discussing the pivotal roles committees play and how to craft them for success. This episode doesn't just stop at the nuts and bolts of committee operation—Donna and Ken dive deep into the concerns that hold back potential volunteers, like the looming fear of litigation and the sacrifice of personal time. They look at protective measures such as insurance and a trustworthy attorney that can help mitigate risks in connection with these volunteer roles. They also dissect new Florida legislation, including changes to document inspections, to help associations navigate these murky waters with transparency and diligence.
Whether you're a seasoned board member or a curious resident, this episode promises an enlightening journey through the challenges and triumphs of committee service.
Conversation Highlights Include:
- Best practices when creating any type of committee
- Notice and transparency requirements for different types of committees
- Standing committees vs. discretionary committees
- Difficulties in getting volunteers for the Fining/Grievance Committee
- Liabilities associated with committees
- New Florida legislation and changes to document inspections
- Bonus: Find out Ken’s hidden talent!
Hi everyone, I'm attorney Donna DiMaggio-Berger and this is Take it to the Board, where we speak condo and HOA. In today's episode we're going to be talking about committees the good, the bad and the ugly, which reminds me of an old joke what do you call a camel? A horse? By committee. That joke should tell you where some of the problems with committees lie. At times they can look and function very differently than intended. It's important to remember that the goals when creating committees are to assist the board with various functions and to engage more owners in important association decisions. I recently attended a board meeting where an unhappy contingency of owners was demanding that the board create a committee for just about every association operation, and they believed that by doing so all those operations would improve. But in reality, are certain committees helpful or harmful? Most people living in condominiums and HOAs are familiar with fining committees, architectural control committees and budget committees, but there are other committees being used in associations. These can include social and entertainment committees, landscaping committees, document rewrite committees, insurance committees, neighborhood watch or screening committees, design committees and executive committees.
Speaker 1My guest today is my partner, ken Director, who is the chair of Becker's Community Association Practice Group. Ken is a board-certified condominium and plan development attorney. He's a fellow in the prestigious College of Community Association Lawyers, or CCAL. Ken was an adjunct professor of law at Nova Southeastern Law School and has served on various Florida Bar committees, including serving as the chair of the board certification committee for the condominium and plan development law. Ken and I are going to address many of the questions we both get asked regularly about committees and hopefully clear up some of the confusion on this topic. If we have enough time, we're also going to dig into the document inspection process, because in Florida at least, that process has now become criminalized to a certain extent. I'm going to give the standard legal disclaimer that Ken and I are not rendering legal advice in this episode and you should always check with your own association counsel on topics of interest to the board. So with that, ken, welcome to Take it to the Board.
Speaker 2Thank you, and thank you for inviting me.
Speaker 1So, Ken, let's assume that an association's governing documents are completely silent on the topic of committees. When and how should a board create a committee?
Speaker 2Well, I think there are four pillars that the board should follow. Number one there has to be a purpose for the committee. You don't form committees just for the sake of forming committees. There should be a purpose, and identifying the purpose will inform the rest of the process. So identify the purpose for the committee. Number two, then identify the people who are best suited to be on that committee, and that's based upon their life experience and their expertise For some committees, their predisposition or their attitude toward other people.
Speaker 2And we can talk about, of course I'm referring to the screening committee as a good example of someone who needs to be discreet. You should define the role of the committee once you've identified the purpose and the people. What is the role? Is it going to be a side-specific task? It may be a one-off committee, but the board should consider what is the role of the committee? And an advisory role, to investigate things, to oversee things going on on the property and to make a report and perhaps recommendations at board meetings. And, if I can expand on that a little bit, sometimes the board has to be aware that the documents may call for standing committees, so the bylaws may require that you have certain committees. It's also important to bear in mind that some documents give the president the authority to appoint committees.
Speaker 1I want to circle back Two very important points. First, who's going to serve on the committee? So we get I get asked this question a lot Do you have to appoint certain people to the committee? Do you have to accept volunteers certain people to the committee, do you have to accept volunteers?
Speaker 1I remember a meeting I went to years ago, a board meeting, and it was in Miami, and they were talking about enforcement, and a woman stood up and she said I don't believe there should be rules. It's not fair. You know, we all are adults, we all know how to behave. I don't believe in rules. Now, not 15 minutes later, when the board was asking for volunteers for the fining and grievance committee, that woman's hand was the first one that was raised and the board felt like they well, we have to take her because she volunteered. And of course, I'm sitting there thinking this is the same person who just said she doesn't believe in rules. Is she a good fit for the fining and grievance committee? So can you talk to that a little bit, because it comes up a lot? And also, can board members serve on these committees?
Speaker 2Well, as for the lawless person, I think you'll recall my answer to the prior question. The second item the board has to consider is who's appropriate for the committee. You can't have a grievance committee with someone who doesn't believe there should be any rules. The board is not obligated to ask for volunteers. The board is not obligated to accept volunteers. Board members can serve, but you can't have a quorum of the board. You have to remember something these committees act for the association, so you need to appoint people who are going to act for the good of the association. Everybody brings their own personal agenda, but these committees can create liability for the good of the association. Everybody brings their own personal agenda, but these committees can create liability for the association if they step out of line or if the individuals on the committee step out of line. So it is important that the board is selective about who is appointed.
Speaker 1You talked about having a clearly defined purpose for the committee. I imagine the best way to do that is to have a board resolution that is adopted, a formal resolution that outlines the scope of authority, Because sometimes we know that there are associations with very relaxed informal procedures where they may just make a formal resolution that sets forth the authority, that it can be disbanded by the board, that new members can be added.
Speaker 2You and I have been at this for many years and we know there are a lot of communities that operate with a level of informality and that's fine until it's not. It only takes one difficult person in the community to impact the ability of the association to continue to operate in an informal manner. With committees, particularly committees that are going to act for the association, that are going to interface with potential buyers and potential tenants, that are going to interface with contractors, that are going to help in the financial planning process, it is important that there be a resolution. I agree with you, donna. There should be a instance. Should we have a realtor serving on the screening committee that comes up?
Speaker 1A lot of boards think that automatically, if Jane is a realtor, she's going to be in favor of always approving everyone Thoughts.
Speaker 2My initial concern with having a realtor on the committee is the opportunity for conflicts of interest. That's a real concern because the realtor has an interest in the sales and leases of units in the condominium. I don't think that kind of expertise is necessarily the right first criteria for a screening committee. I think the best criteria is someone who's been in the corporate world perhaps and served in a human resources department, who understands how to talk to employees and prospective employees and departing employees, someone who has the ability to ask questions but do so in a way that is discreet and who knows what, not to ask the legal committee.
Speaker 1Do we want the retired personal injury attorney from New York on the legal committee? Or do we not want, I mean, I hadn't planned on going on this path, but now that we're talking about it, you know what kind of evaluation do boards make, or should they make, when they're trying to compile like they're the committee equivalent of fantasy football.
Speaker 2Well, there is a subtext, Donna, to the choice of who serves on any committee, whether it's legal, whether it's screening, whether it's grievance. You talked about the woman who didn't believe there should be any rules. You need to be careful, as a board, to understand whether you're appointing someone who has an agenda of their own. If a lawyer for the legal committee has an agenda that he or she knows better than anybody else and you don't need outside counsel, that's probably not the best person, because the purpose of a legal committee is to liaise with your outside counsel and provide a conduit, if you will, for the legal advice to be transferred or transmitted to the board in a way that a lay person can understand it. So I think expertise matters, as is the subtext of your question, but I think, more importantly, you have to have someone who is there for the association, not for their own agenda.
Speaker 1So a retired educator could be a key member of the legal committee if he or she can hear the advice, digest the advice and communicate that to the board, if I'm hearing you correctly.
Speaker 2You're entirely correct. But you also want people who are suitable for the committee. Lawyers on the legal committee is certainly a sensible approach because they understand the issues and, frankly, they may be able to work more efficiently and therefore more cost effectively with outside counsel than non-lawyers. For example, if you take another type of committee, the grievance committee, you not only don't want the person who says there shouldn't be any rules, but you also don't necessarily want someone who's not prepared to, if necessary, be the bad guy. I jokingly recommend to my clients that the best people for the grievance committee are former law enforcement and former military, because they both certainly believe in a chain of command and an orderly process and that people should abide by the rules. So choosing the people for a committee is not a matter of personal favoritism. It really has to be a choice that is well considered for what is best for the association and best to discharge the purpose of the committee.
Speaker 1You know who else believes in law and order. My mom, marilyn DiMaggio, who has been on her Weston Homeowners Association Grievance Committee for 15 years. She's all of four foot 11, certainly not retired military, and you know she's volunteered. And if you ask her why she's done it, she'll say because I feel like I should. They asked me and I feel like I can help.
Speaker 2She's the Italian version of Dr Ruth.
Speaker 1Except she's not Italian. No, well, okay, except she just married somebody Italian. Yeah, true enough. Well, let's talk about committee size. Is there, you know, we know normally and your ability to actually get people together for meetings you get to a certain size, you can't even coordinate your calendar.
Speaker 2So I think size is a function of all of those issues.
Speaker 1You just mentioned notice, so let's talk about we have a lot of Floridians listening to the show Talk about the meeting notice requirements for committees.
Speaker 2Well, for Florida there are different requirements for a homeowners association as opposed to condos and co-ops. In a condo or co-op the committees that are involved in developing a budget or have the authority to take final action their meetings have to be noticed and open, just like board meetings. Now in Florida, all other committees are subject to the same requirements unless the bylaws exempt them. And there are a lot of older communities that think that these other committees are exempt, but they've never amended their bylaws to make them exempt. In a homeowners association, a committee that has the authority to approve final expenditures, a committee that has the authority to approve architectural control applications those two committees, their meetings must be noticed and open. But the HOA statute doesn't require other committees besides those two to hold their meetings with the same formality as a board meeting. It is important to know the process and what the law requires in terms of notice and open meetings.
Speaker 1You mentioned a quorum of directors. So let's say we have a seven-member committee, only three of the committee members are directors. So let's say we have a seven member committee, only three of the committee members are directors. The rest are owners, not non-directors, I should say. But at a particular meeting that shifts because a few people couldn't show up. Now you've got a quorum that are present of that committee that are directors Morphs into a de facto board meeting. You have seven committee members. Three of the seven are board members. The other four are non-board members. But at a particular meeting of that committee you've got three of the five people are the board members who've shown up.
Speaker 2I honestly don't think that makes a difference, Donna, because in order for something to become a board meeting, you have to have a quorum of the board participating in the discussion. So it's still a committee, and the three board members who are there are there in their capacity as committee members, not as board members.
Speaker 1Even though their presence constitutes a quorum of that committee.
Speaker 2Correct A quorum of that committee.
Speaker 1I'm going to say again we're not dispensing legal advice. Okay, we're not giving legal advice, but you see how complicated this can become. Yes, we get asked these questions a lot. Let's go back to standing committees. Let's say that under our bylaws it says that we have to have an architectural control committee, we have to have a finding and grievance committee and we have to have a social committee. Okay, new board gets in and they don't like any of these committees and they say we're not going to fill these committees. Problem.
Speaker 2If the bylaws require these standing committees, yes, problem. It's a violation of the bylaws.
Speaker 1Now let's say they want to fill them, but they can't find any volunteers. I guess it's an impossibility performance argument.
Speaker 2You can't Shanghai people to serve on committees. You know back to your even your prior question. With multiple board members on a committee, you can have board members on a committee, but one of the purposes for committees is for the board to get input from people who aren't on the board. So appointing board members to committees to me suggests that you don't have enough other people in the community willing to participate and provide advice to the board on specific issues. As far as not being able to find people willing to serve, then you aren't going to have a committee structure.
Liability Risks of Community Committees
Speaker 1Well, let's talk about that. I mentioned my mom, who's been on her Weston Homeowners Association grievance committee for years. Let's talk about the finding and grievance because that makes sense. I don't want to pass judgment on my neighbors, but that's one of the more useful committees out there. What do you think drives the hesitation to get involved?
Speaker 2I think you already hit the nail on the head with that issue, donna, which is most people. They don't want to be the bad guys, they don't want to put themselves in the line of fire, especially when they see some of the people in the community who want to sue anybody who crosses them. The problem with that reluctance to serve on a grievance committee is you miss the most cost effective and expedient way to address violations. It now allows you to address violations without having to bring in lawyers, without having to incur those costs, without having to go to court, without having to get people to testify, and sometimes just the formation of a grievance committee especially with, you know, marilyn Hangham High DiMaggio on it sometimes just the formation of that committee is a deterrent against violations.
Speaker 1I think you're absolutely correct and I think that boards, when they're asking people whether or not they are willing to serve on a fine or grievance committee, should also discuss the time commitment involved, because I think a lot of people they think it's going to be a huge time commitment for any of these types of committees. I know in a lot of my communities the fine or grievance committee can. They may only meet once or twice a year. They are only called into action when the board wants to impose a fine or suspend use rights.
Speaker 2Well, they're only called into action under those circumstances and even then only if the violator demands a hearing. Some violators they don't want a hearing because it only adds to the embarrassment factor. So sometimes you know they agree to comply, or they accept and pay the fine, or they accept and live with the suspension. So it is not a huge time commitment. Now, if you're in a community of four or five hundred and there are a lot of miscreants in the community who want to violate the documents regularly, it can become a more time consuming commitment. But in that circumstance you could appoint a group of people to the committee who may rotate on and off to different hearings so that you don't have the same people there every time.
Speaker 1That's a great idea where you don't have to serve all the time, and that's a good takeaway. Can we talk about a few specific committees?
Speaker 2Absolutely.
Speaker 1So we just delved into the fining and grievance. Let's talk about committees that boards may not realize have the potential to create liability for the association. So let's talk about a neighborhood watch or security committee. Do you have those kind of committees in any of your neighborhoods?
Speaker 2Not too many anymore, not since the Trayvon Martin tragedy. The board has to take security in the community seriously because one of the bases for individual liability for board members is not responding when there's an ongoing pattern of criminal conduct on the property, and that applies in Florida and in any other state in the country. So I'm not sure about neighborhood watch committees being a good idea in the first place. Now I realize that security can be a costly service to provide, but if your community needs it, it should be provided by professionals, not by amateurs. And I'm not just concerned about interdicting the people on the property who might commit crime. I'm also talking about what could happen to your volunteers when they do so. So I think leaving security to the professionals is the best approach.
Speaker 1I agree with you. What about something that's as innocuous as the garden committee? So you've got some kindly volunteers that are doing some landscaping around the monument wall and the homeowners association. But you know I've had Jane Gilbert on the show, miami-dade's chief heat officer, talking about how dangerous it is now, especially during summer months, here in Florida and in other states like Texas anywhere along the Sunbelt. Something as innocuous as a garden committee could wind up creating a problem.
Speaker 2I absolutely agree. I think you have to worry about number one possible injuries to the volunteers. Number two possible damage to the property. Possible damage to another owner's property. As is the case with security, maintaining the property is the responsibility of the association, particularly when it comes to the common areas of an HOA or the common elements of a condo. There are communities who try to save money by having volunteer owners perform some of that work or having a handyman in the community clean out the gutters, which is all fine and good until he falls off the step ladder.
Speaker 1Well, we saw that during not the falling off the step ladder, but we saw the increase in volunteer use, of volunteers during the recession in 2006, 2007. Remember when many of our communities were tightening their budgets because they had such high number of delinquencies? And we did see people volunteering to clean the pools, cut the grass and what have you.
Speaker 2Well, you and I share a similar philosophy, donna, which is that we don't try to over-lawyer the issues that come across our desks. However, one of the first questions I ask a client considering hiring a vendor whether it's the tree trimmer or the lawnmower or the pool service company is, I ask them does the contractor carry workers' compensation insurance? And if you're using volunteers from the community, you know they're not going to have workers' compensation insurance. There are ways to save money, but there are also ways that saving money can reduce the protections for the association and increase the risk of liability, and sometimes the money you save is not worth the increased risk.
Speaker 1I agree. Let's go on to the next seemingly innocuous committee that can spiral out of control the social and entertainment committees. We see these committees in a lot of our large senior housing communities and I have seen these go off the rails in terms of the shows they select, the events they host, the people they do and do not invite to these parties, the fees that they want to charge for people to attend these events. Talk to me about social and entertainment committees.
Speaker 2Well, first of all, I think the idea of getting people in the community together in a social setting is a good thing. I think it's always a good thing. But you always have to consider protecting the association from unnecessary liability. For example, are you inviting non-residents and non-owners to these events? That increases your risk of liabilityowners to these events? That increases your risk of liability. Are you serving alcohol? That increases your risk of liability. Are you taking people off-site to the Hard Rock Casino or something that increases your risk of liability? Is the social committee providing a yoga class or a water aerobics class? These circumstances again, they don't have to be over-lawyered, but it is worth a phone call to your association counsel to say the social committee wants to do this. What should we be concerned about and what can we do to protect the association against liability?
Speaker 1What about the screening committee? Do you ever recommend a non-board member to sit on a screening committee and review sensitive information about an applicant for purchase or lease?
Speaker 2Now, sometimes the board members are the least discreet people in the community and I go back to my initial comment about carefully selecting the people who will serve on a screening committee but the potential liabilities associated with screening are enormous if you say the wrong thing, if you ask the wrong question. So that brings us to an issue that we haven't addressed yet, which is whether or not insurance covers the committee members, and what I have learned is that it can, but it doesn't always. You need to check your liability and your D&O policy and talk to your agent, especially if you have a large committee structure in your community, to make sure that the general liability and or the director's and officer's liability policies cover committee members.
Speaker 1Do you think, Ken, that the committee members also need to check their own individual coverage?
Speaker 2I would if I was going to serve. There's no insurance for not having insurance. I would if I was going to serve. There's no insurance for not having insurance. So yes, being aware of what your coverages are, but if you're going to serve on a committee, the starting place is the association's liability policies.
Speaker 1Let's talk about one of my least favorite committees document rewrite committees. Ok, now, normally I'm not saying that they do not serve a useful purpose, so I don't want people screaming when they hear this. But I have found that when it's a community that's looking for a you know, a complete document rewrite project or numerous amendments, they will come to us and say our document rewrite committee has been working on this for a year. It's always like for a year that the committee has been working on the proposed changes and then you get them and they're actually drafting the amendments, and they're drafting them in a vacuum, without knowing fully the framework of the statute, the administrative rules and the body of case law that may be applicable in their state. So what is your hot take on document rewrite committees?
Committee Structure in Community Governance
Speaker 2Well, you already told the joke. That would be applicable Sometimes with a document committee you get a camel, much like the criteria used to form a committee. A document rewrite requires careful consideration by the board on how best to pull it off. There is a place for a committee to have input, but there's also a place for council to draft unilaterally. For example, you don't need a committee to tell council where the developer references are that are no longer pertinent to a community that turned over 20, 30 years ago.
Speaker 2You don't need a committee to tell council how to update certain purely statutory provisions, like most of the bylaws, like the assessment collection provision, like the enforcement provision which tracks the remedies that are available under Florida statutory and Florida common law and under the statutory and common law of whatever state you're in, that you're listening to this podcast. So the role of the committee is to provide advice to counsel on the policy issues, and the policy issues typically are when there's a membership vote, what should the threshold be? When there are alteration, pardon me when there are maintenance responsibilities allocated between the owners and the association, where are the dividing lines? They should be clear. I often tell my clients when you have a plumbing leak, I would rather that you call a plumber than a lawyer.
Speaker 2If the association is going to make alterations to the common elements or an owner wants to make renovations to a unit, there should be clear guidelines for what they can do. You mentioned a screening committee. Your documents should be clear on what the association's rights and responsibilities are with regard to screening and or approving tenants or potential purchasers, or even those that would inherit the unit when the current owners pass away. And then there are all the rest of the use restrictions Single family guests, commercial use. How many of your communities have people who are running their businesses out of their unit because all they need is a laptop or an iPad or a desktop? Pets is a hot issue, but the fair housing laws have sort of changed that dynamic considerably. A lot of older communities don't allow corporate owners. That should be revisited. How units can be titled. So there's a lot to consider, but the committee should focus on the policies, not on the stuff that council can take care of.
Speaker 1Yeah, I think we approach this, you know, in the same way, because I ask these document committees to identify the problems and issues. Are you running out of parking, okay. Do you have an issue with unapproved guests? Do you have an issue with short-term rentals? Can be very helpful if they stay within that framework. It's when they start actually drafting the amendments that I think the association spends more money. Having us go through all of that and then come back and say we got to start over, and I also think it can create some hurt feelings if the committee has spent a year drafting amendments and then are told that 98% of them cannot be used.
Speaker 2It's a lot easier for a committee to tell you or tell me we want to curb short-term rentals and we want to discourage people who would buy solely for that purpose. I can take it from there. I can draft a moratorium against leasing for the first year of ownership, with certain exceptions. I can put in a prohibition against even listing a unit on Airbnb. So what we need as counsel are the goals, not the details.
Speaker 1So you mentioned the role of the document rewrite committee as coming up with the policy, identifying the policy issues and then turning it over to the board, who will then turn it over to counsel to run with. I want to apply that. We're hearing more and more about insurance committees in Florida, given the insurance crisis, more and more communities that are looking for ways to navigate the premiums, and we're hearing about all these insurance committees, some of whom are making recommendations, Ken, that the boards, that the associations self-insure. So when you're talking about a committee like that, I'm wondering how useful a committee like an insurance committee can be when you've got a board that's grappling with premiums. I mean, unless it's stocked with licensed insurance agents, what's the purpose of an insurance?
Speaker 2committee. No, you sort of anticipated my response. Your insurance committee should be your insurance agent. If you live in a condominium, the statute pretty much covers what your insurance obligations are. There's not a whole lot of room. And as far as self-insurance is concerned, I would remind you what I said a few minutes ago there's no such thing as insurance for not getting insurance. I think if you try to save money by curtailing the insurance, you're asking for trouble. I realize the expenses is just exorbitant now and the increases are mind blowing, but if you live in a coastal region where you can have tropical storms or hurricanes, or somewhere else in the country where you may see tornadoes, you have to have casualty insurance for those worst case scenario perils.
Speaker 1You've answered my question, because I do think in some instances the committee's insurance for example were comprised of people who just don't want to buy the insurance. That's not a level of expertise. To serve on the insurance committee. You still have to understand what the legal obligations are of the association.
Speaker 2Insurance decisions must be made in consultation with your insurance agent, who knows the industry, and your association counsel, who knows the law applicable to your type of community. And we haven't even mentioned but for homeowners associations and co-ops, the insurance requirements may be set forth in the governing documents. And a committee doesn't have the authority, nor does the board have the authority, to disregard those requirements.
Speaker 1Good point. So we've talked about trying to make the best choice for who serves on these committees. But you know as well as I do that sometimes a board will try to offer membership on a committee as an olive branch to the person in the community who is unhappy about everything. So that person is the resident critic. They think everything can be done better and I know sometimes it does work to put that person to work on a committee. Sometimes it doesn't. Have you had that experience?
Speaker 2I most certainly have. Sometimes the board members get their dander up because it's their ego in play. I think there's an old expression I think it came from JR Ewing, back from Dallas years ago where you keep your friends close and your enemies closer. The naysayer could just be someone who can't work with anybody, and if that's the case that person doesn't go on a committee. But sometimes the naysayer may be someone who just feels disenfranchised, who may have the ability to make valuable contributions if he or she is included in the discussions. That's a tough decision for the board to make, but I think it's an important decision for them to make because including the person who might rail against whatever the board is doing in the process to help plan it, you eliminate opposition by simply co-opting that person into the process, especially if they are someone who might have some constructive ideas to add to the process and could be someone that can work with a group of people. Sometimes it's not.
Speaker 1Do you find that condominiums and co-op boards are more likely to use committees as opposed to HOA boards, or there's not really a distinction?
Speaker 2I don't think there is as much a distinction. I suppose in condos and co-ops that are multifamily buildings because everybody lives in much closer proximity there are more issues affecting the entire building for which committees can be useful, whereas in an HOA, if you have detached single family homes, there may be less issues that warrant that kind of community involvement.
Speaker 1You know, I said in the introduction that I had recently attended a board meeting where there was a very vocal minority of people who were unhappy about everything that was going on, and their answer was they proposed about eight different committees. Ken, the feeling I got was that this group of people really wanted association governance by consensus, and committee structure doesn't really give them that. So even if you created all seven or eight of the committees they were looking for, that doesn't mean that the board has to take the advice of the committees.
Speaker 2Well, this question also implicates the question you just asked me about the community naysayer being part of a committee. It also allows the board and the owners who attend those meetings to hear these people make their presentations on behalf of their committee and evaluate them as potential future board members. So sometimes you have somebody who is just so far out in the right field that you give them enough rope. They hang themselves politically in the community because they make it clear to the rest of the community that they don't speak from the same perspective or share the sentiments of the rest of the community. Sometimes that's a good thing for the future of the community, but I think having the committee structure in place is a desirable thing. I think having the right people on the committee and giving them a chance to speak and present at board meetings is a good thing for the community and for the people on the committee to learn what it's like to work in a group and perhaps someday join the board.
Speaker 1What percentage of your communities do you think use committees?
Speaker 2I'd like to think more than half, but I'm not certain. Some of them use committees and then a new board comes in and they don't want to. Sometimes boards get frustrated with committees who sort of go rogue or go off the rails. But I think having committees, particularly in a larger community, more than 100 units or more, I think having a committee structure is a good thing. It gets more people involved. It gives the board input from people in the community who may have specific life experience or qualifications or education that makes their input valuable. Experience or qualifications or education that makes their input valuable. I would never use, for example, a construction committee in lieu of an engineer for a project that requires an engineer, but having a construction committee oversee the engineer and oversee the contractor can be helpful.
Speaker 1Agreed, I wouldn't have a construction committee serve as an owner's rep on a major restoration project, so I've seen recently a few boards talking about that, using volunteers to get involved. But again, you still need to have the proper licensed professionals assisting you.
Speaker 2Well, this harkens back to some of the opening comments about a committee getting a prescribed purpose and a limited scope of authority. Because if you have a construction committee that is approving contracts or change orders or directing the work, if they don't have final authority to make those decisions, then they shouldn't be making those decisions. If they serve in an advisory role, then they should talk to the engineer. They can have a weekly meeting with the engineer and the contractor, but their role then is to report back to the board with their recommendations.
Speaker 1Well, I think we have a little bit of time left where we can talk about recent legislation in Florida. I only want to talk about the segment of that legislation, ken, that pertains to document inspections. You know, document inspections. That process is one that we see creates a lot of frustration on both sides the owners who are trying to get access to their documents and, let's be honest, they're their documents, except for the privileged and confidential documents as well as frustration on the part of the management professionals and the board members if they feel like somebody is literally using the document inspection process to harass them. So we've seen legislation in Florida it's primed to take effect July 1st we believe it will that will criminalize their significant criminal and civil penalties if this process is not handled correctly.
Speaker 2I don't think you criminalize the behavior of volunteers, who are susceptible to making mistakes. I think you treat people as criminals when they behave like criminals. Someone who takes a bribe to vote for a particular contractor that person should be treated like a criminal. Someone who absconds with association funds should be treated like a criminal. Someone who doesn't maintain the records the way they're supposed to be maintained or doesn't produce them in the manner they're required to be produced. I view that as a civil matter, not a criminal matter, but I'm not in the legislature.
Speaker 1With the exception, if I may, that if they are preventing the inspection of the documents to cover up a crime, then that's a crime.
Speaker 2But then there's an underlying crime.
Speaker 1But then there's an underlying crime. Yes, Correct.
Speaker 2The state attorney's office certainly has the resources to conduct an investigation and find out what the underlying crime is.
Speaker 2Let me be clear Owners have the right to have access to the official records with very limited exceptions, and it is important for the association to have the records in a sufficiently orderly to be maintained in a sufficiently orderly fashion to be able to produce them within the time frame required and produce the records that the owner is requesting.
Speaker 2I do not believe that withholding records is ever a good idea. Even if they might show something that the board did wrong, the records should be made available. But there are things that you can do as a board. You can adopt a rule to regulate the inspection process, but you should consult your lawyer to make sure that you draft something that strikes a balance between regulating records, inspections, so that they are not, as you say, used as a sword, but does so in a reasonable way that comports with the and respects the owner's rights. With regard to this issue, owners who do things send three emails a day, complain about the manager, complain about the board. I think this underscores the importance of the board and the management knowing what the owners are entitled to and what they're not entitled to? Donna, how often do you see a board member or a manager devoting hours every week to responding to one owner's emails?
Speaker 1All the time and they're not required to do it. And I have the same conversation you have, which is it's going to take some discipline on the manager's part or the board's part not to take the bait on that to create a very solid framework around both document inspection requests and certified written inquiries. We're talking about Florida law here, but, yeah, you are not required to respond to ranty emails, as I like to call them.
Committee Conversations and Musical Escapes
Speaker 2Well and I think this applies in other jurisdictions as well which is when you have an owner who is using these rights to submit inquiries or to submit records requests as a sword as opposed to as a true fact-finding issue. I think it's important to understand what the law is, because I've advised clients many times. That owner gets what he or she is entitled to, nothing more and nothing less.
Speaker 1I think what would be helpful in the coming years is if our public policymakers understand that there are times when document inspection requests, as you say, can be used as a sword. I saw that out in southwest Florida in the aftermath of Hurricane Ian. One of the managers reached out to me in a building and said that the person who usually pounds them with document inspection requests sent three in in the 30 days post-in when they were still pumping water out of units and the common areas, and under these rigid laws they don't make any exception for those type of exigent circumstances. So I do think we need our public policymakers to understand the other side's perspective when it comes to document inspections.
Speaker 2Our policymakers, at least in Florida and I know in other states have adopted an emergency powers clause to address the exigencies of a truly emergency situation. That should apply also to what we're talking about right now, which is producing records which may have been lost in a fire or may have been lost in a flood. But this underscores another issue that you and I have talked about recently, which is digitizing records. If the new laws that were adopted by the legislature in Florida and I know are applicable in other jurisdictions, if you're required to have a website, then you're required to have certain records on that website, and that means you need to digitize your records. And if you think about it, digitizing your records works to everyone's convenience. It allows the owner to simply have the documents emailed or access them through the internet, and it allows the board to simply pull from an organized computer file and say these are the records you asked for, attach them to an email. Here they are.
Speaker 1Yeah, you don't even need a website for that. What we're talking about by the way, some people might not know what you mean, ken, when you say digitize we're really talking about scanning and uploading those documents and keeping them in an electronic format, which is a perfect segue. Back to our committee conversation, which is, of all the committees that I've ever heard, I have never once had a community say to me we're going to have a scanning committee, but, to your point, if we can extricate ourselves as an association from the inspection process, everything is digital, everything's uploaded on a webpage. Here you go. Then some of these issues with I made a request, they didn't meet it timely, those all disappear. But a lot of communities will say we've got three decades of ancient documents to upload and we don't have the money to pay someone. My suggestion is why not create a scanning committee, a document scanning committee, in your community, and have these volunteers start scanning these documents?
Speaker 2I agree, Donna. I mean, you're never going to completely extricate yourself from the document inspection process, but you can reduce the burden that it can impose upon the board and the staff by having the records organized, even if they're in paper form. Having them organized so you know what is where, but putting them into computer files so that you can pull them up with the click of a mouse is a tremendous advantage for everybody and I think that would be a very useful committee to help scan the documents and also to keep them scanned on a monthly basis as new hard copy records come in.
Speaker 1Before we wrap up, listen. We see each other. We're only capturing the audio. I'm looking at you in your home music studio. I don't know how many guitars you have. How many guitars do you have sitting behind you right now?
Speaker 2I have nine sitting behind me. I have one more downstairs.
Speaker 1Your babies. I know known you a long time. You told me your mom wanted you to be a doctor, worst case a lawyer, which you became. But you had potential, really good career ahead of you as a composer and a musician.
Speaker 2Well, I don't know about that. I could have been stuck eating bologna my whole life. But music is more than just an aspirational profession for people who really love it. I took up piano when I was six years old. My parents got a grand piano from an estate sale and here I am, 60 years later, and I have that piano downstairs where any rational person would have a dining room. I have my grand piano there. I picked up guitar when I was 12 years old, when I was young. Music for me was an escape, and as an adolescent. Let's face it, adolescent boys have a hard time expressing themselves. That been your experience.
Speaker 1You have a son. I've never been an adolescent boy, but I had a son and they go into their silent mode for a few years.
Speaker 2Yes For me, music was a way to express myself when I was unable to do it verbally, and at this point in my life, now that I'm in my mid-60s, music is still an escape. It gives me great pleasure. Everybody has something which they do, and when they're doing it, it takes their mind off everything else. For some people it's pools, for some people it's golf, for some people it's cooking. For me it's music. Whether I'm playing music or I'm listening to music, I can immerse myself in it and I can escape everything that's bothering me, and that's a pretty good thing.
Speaker 1You can escape the conversations about committees and document inspections when you're listening to music.
Speaker 2I can escape every conversation when I'm listening to music.
Speaker 1Well, I'd like our listeners to listen to some of your music, because you have a couple songs that are available on iTunes, and we are going to just listen to a few notes of my Own Faith which I wrote for my children, my own faith has been restored.
Speaker 3Looking forward, looking back, I've always wanted more. I see every good thing. I will ever be or ever do, every time I see myself in you.
Speaker 1So what inspired? That song?
Speaker 2For all the parents who are out there listening. You can all remember the first time you saw your baby walk, the first time your baby spoke. But you may not remember the first time you saw something in your baby where you saw yourself, in your boy or your girl. And that is the moment where you feel, dare I say, immortal, because you feel like a part of you or someone who resembles you or has your mannerisms and your characteristics is going to be here after you're gone. And that is a moment where, no matter how hard life has become for you, you feel good. Hence the song my Own Faith and the chorus that says my own faith has been restored. I wrote that song when I saw in my own children remnants or pieces of me, and that's what inspired that song.
Speaker 1It's a beautiful song. Can we expect any future songs from you?
Speaker 2You know, like a lot of people who are composers, you get to a point where the muse is just not what it? Used to be. I mean, paul McCartney is not writing stuff like he wrote when he was working with John Lennon. Billy Joel does not write stuff like he wrote in the early 70s. But I try. I still fiddle around on the instruments, I still think of themes I'd like to write about. So I'm never, ever going to give it up as long as I'm drawing breath.
Speaker 1How many songs do you have on iTunes now? Four, four songs. Okay, you heard it here. Folks, ken, thanks so much for joining us today. It's been a real pleasure. Thank you, my pleasure. Thank you for joining us today. Don't forget to follow and rate us on your favorite podcast platform or visit takeittotheboardcom for more ways to connect.