Common Ground
CAI's Magazine for Community Association Leaders

Ask the Experts:

Guest Expert: Michael J. Gelfand, Esq.

Q. Is it permissible for an association board to publicly endorse a slate of board candidates in the information provided to homeowners for the upcoming election? Included with the information was a bio on each candidate running, but the current board members also took the opportunity to suggest that members vote for the three that they recommended. —Palm Coast, Fla.

A. Perhaps the most valuable insight concerning elections is recognizing an election's two most important purposes. First, the most obvious is to select leaders. Second, implicit, but just as important, is to reinforce the legitimacy of the organization to govern.

The importance of these dual purposes is no different for community associations. In Florida homeowners associations, these purposes are sought to be reinforced by the Homeowners Association Act. Nevertheless, the act does not bar individuals who volunteer to serve as directors from endorsing candidates.

This conclusion is in contrast to Florida condominium association elections in which nominating committees are prohibited by Florida Administrative Code Rule 61B-23.0021(3). There is no similar statute or rule prohibiting nominating committees in homeowners associations.

As with many association governance issues, reasonable people do differ; thus, beyond the legal issue, there is no one perfect answer whether there should be nominating committees. Sometimes committees are perceived as anointing candidates; however, sometimes without committees there would be no candidates!

Which route to follow may be determined by balancing the dual goals of selection and legitimacy. If a nominating committee is utilized, then the question of whom should participate results in many opinions. Managers may have the most information regarding the owners; however, they must be careful not to be injected into political issues. Similarly, while directors may be able to evaluate candidates, some are wary that directors would replicate themselves. Expending association assets to endorse a candidate, while not expressly prohibited by Florida home?owners association laws, would appear to undermine the second purpose of elections—legitimacy.

The questioner should consider two options. First, seek election to the board so you can work to change the procedures. Alternatively, seek to amend the bylaws to specify a particular procedure. Certainly if there is overwhelming dissatisfaction with the process, then obtaining enough votes to be elected or to pass an amendment should not be difficult.

Before taking any action, you should consult with counsel as this column is not legal advice.

Michael J. Gelfand is an attorney with Gelfand & Arpe, P.A., in West Palm Beach, Fla., a Florida Bar Board Certified Real Estate Attorney and a member of CAI's College of Community Association Lawyers (CCAL).

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