The property manager of an HOA tells residents who they should vote for in a board election and how to vote on assessments. Does Fla. law allow that?
WEST PALM BEACH, Fla. – Question: Can the property manager of our homeowners association tell owners who to vote for in a board election, or when it comes to voting for assessments? The HOA manager in my condo unabashedly tells owners who to vote for and who not to vote for in elections. Is this legal? – K.U.
Dear K.U.: There are very few laws governing electioneering (actively campaigning) in community association elections. The Condominium Act and related code provisions say that the ballot in a condominium election cannot identify which of the candidates are the incumbents and specifies the documents that must be included in the second notice, but they don’t say much else about communications outside of those parameters.
And the HOA Act is even less specific, mostly leaving election procedure to the individual association governing documents.
There are very few arbitration cases considering electioneering, and as far as I am aware they all relate to condominiums.
In one case, Ilan Weiss v. International Village Association, Inc. (2016), the president of the association published articles in two association blogs touting his history as a director and his accomplishments; and he also urged owners to vote for two other candidates in addition to himself. The arbitrator stated that in order to demonstrate “illegal electioneering” the petitioner would have to provide evidence “that the blog was designated by the Association as its official website or that it used funds of the Association to maintain the website or was designated as such at a meeting of the Association, was drafted from the Association’s offices or on the Association’s computers or that employees of the Association contributed to the information published on the site.”
As the petitioner provided no such evidence, that claim was rejected.
However that decision, which further stated that, to be illegal, the communication would have to be proven to be “by and on behalf of the board which improperly endorsed certain candidates over others for election to the board” cited Section 718.112(2)(d), Fla. Stat., in support of the notion that such a communication would be improper.
Frankly, I do not see any language in 718.112(2)(d) that would prohibit electioneering, other than providing the nature of the first and second notices. Because the case was not decided on this basis, it’s hard to put much weight in the arbitrator’s discussion.
Compare that to the case of Short, et al. v. Windhover Association, Inc. (2012), where a community association manager sent a letter to unit owners endorsing specific candidates for the board (this letter was separate and apart from the second mailing). The arbitrator noted only Florida Administrative Code Rule 61B-23.0021(8), which states that “the second notice and accompanying documents shall not contain any communication by the board that endorses, disapproves, or otherwise comments on any candidate.”
The arbitrator concluded that, because the manager sent his letter separate from the notice and election materials, there was no basis to conclude that the letter violated the rule. I think that is the more correct position, and that there is simply very little in the law that restricts campaigning and other forms of electioneering, other than the prohibitions concerning what is included in the second mailing (in a condominium).
Given that HOA law is even less restrictive, it is very difficult for me to believe that there is any basis to regulate property manager or board member communications endorsing specific candidates. It is possible in an egregious case, where perhaps a board member used association funds to mail an extensive letter trashing a candidate, an arbitrator could conclude that the letter was improper; but I doubt the decision could be premised on any language in the laws and rules governing elections. Instead, I would suspect the arbitrator would simply hold that the expenditure of funds was for an improper purpose, and it’s not clear to me if that would be enough to overturn an election.
Overall, it’s my opinion that there are no general laws that would restrict the ability of any person, whether owner, candidate or employee, from endorsing a candidate or communicating their preference for candidates. That would be doubly true with respect to other association issues, such as approving a material alteration or an assessment.
Ryan Poliakoff, a partner at Backer Poliakoff & Foelster, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of “New Neighborhoods – The Consumer’s Guide to Condominium, Co-Op and HOA Living.”
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