By Attorney S. Kyla Thomson
Q. I am a Board member in my homeowner’s association and I have a question regarding the fining committee. There are some Board members that believe that the fining committee should only serve at one fining committee hearing, similar to a jury. Once that particular set of people serve on the fining committee, they are essentially dismissed from serving. Other Board members believe that the fining committee should serve at the pleasure of the Board and may serve for more than one fining committee hearing. Which is the best approach?
-G.K., Naples
A. Both scenarios, as you have presented, can be implemented in your homeowner’s association. That being said, the second scenario, where the fining committee serves at the pleasure of the Board and serves for more than one fining committee hearing, is more common. It is important to note that the fining committee members’ service is voluntary. So, they can resign at any time. However, this also means that the fining committee members may serve for longer than one fining committee hearing and for so long as the Board of Directors allows the members to serve on the fining committee. The first scenario presented can have some challenges. It is usually difficult to find people to serve on the fining committee. The nature of the fining committee is different than the landscaping, budget, or social committee. This is because there can be some conflict to service on the fining committee. As you know, the fining committee decides on whether to approve or reject the proposed fine of an owner by the Board of Directors. As a result, sometimes fining committee members are the subject of intimidation or even retaliation by owners who are sought to be or have been fined. Most people would rather avoid the conflict and, as a result, will not agree to serve on the fining committee. As such, if your homeowner’s association implements the first scenario, there may come a time where no eligible owner is willing to serve on the fining committee.
As a summary, both scenarios presented can be implemented. However, it is likely more efficient and beneficial to implement the second scenario because of the explanation above. If you have any further questions about this matter, please consult your legal counsel.
Q. Our condominium association has scheduled a closed Board of Directors meeting. I know there are two situations in Chapter 718, Florida Statutes, where a Board of Directors meeting can be closed – (1) meetings between the Board and the association’s attorney, with respect to proposed or pending litigation, if the meeting is held for the purpose of seeking or rendering legal advice; or (2) Board meetings held for the purpose of discussing personnel matters. The only issue here is that our association does not have an attorney. I think the Board wants to meet with another association’s attorney to talk about settling a legal dispute that our association has with that other association, whom the attorney represents. Is the closed Board meeting legal?
-R.V., Bonita Springs
A. The Board cannot hold a closed Board meeting for the purpose of settling a legal dispute with another association’s attorney. If your Board is meeting with another association’s attorney to settle a legal dispute, this means that the attorney is not attending the closed Board meeting to render legal advice to your Board of Directors as he/she is representing an adverse party to the association and its Board of Directors. In my opinion, your association needs to engage its own legal counsel. Without the benefit of legal advice in this dispute, your Board of Directors might not be considering all the relevant issues and may be disadvantaged in any settlement negotiations with this attorney. If your association engages legal counsel, then the Board of Directors can properly hold a closed Board meeting with its own attorney to seek legal advice regarding this ongoing dispute and any other legal matter that arises in the future. However, until the association engages its own legal counsel, it cannot hold a closed Board meeting for the purpose of seeking or rendering legal advice.