When the Condo Crime Bill, HB 1237, was being
debated I wrote a blog in March that warned about the bill as
follows:
I’m almost embarrassed to write the next provision. Recalls
would now be automatic. If the Board receives a stack of recall
ballots that equal more than 50% of the units, the people are
recalled, regardless of whether or not all of the ballots are
fake, fraudulent or signed by non owners. It would now be up to
the recalled persons to file their own arbitration case.
I thought the idea was to prevent fraud? This bill encourages
fraud. Just quickly gather as many recall ballots as you can,
have them signed by anyone, serve them on the board …and you
win. Make the poor director who was duped responsible for going
out and hiring an attorney now. Where is there any proof or
even suggestion that the recall process is flawed? I can tell
you it isn’t. The process is detailed and during the 5 day
period between the time the board gets served with the recall
ballots and the recall meeting, a lot of work goes into
verification of the ballots. Duplicates are searched for,
photocopies are disregarded, ballots are checked to ensure that
the ballot is signed by an owner and not a renter, ballots are
checked to ensure the person signing it has the authority to
sign it pursuant to a voting certificate. That all gets thrown
out the window now, and he who files fake ballots wins anyway.
I have no idea of the thought process that went into this but
this provision is absolutely dangerous and actually rewards
illegal behavior.
That’s what I said. I’m on
record.
In response to my concerns, I was assured by legislators and
their staff that I was reading the proposed bill incorrectly and
that the Board would certainly not lose their right to not
certify an obvious invalid recall attempt and they still have
the right to file an arbitration action. I was assured that
basically nothing had changed.
Well……..I told you so. On September 1st Chief
Arbitrator James Earl, in Sunbrook Condominium Association v.
Unit Owners Voting for Recall, Case No. 2017-03-8121entered
an
Order that says the Arbitration Division no longer has
jurisdiction to hear recall cases filed by a Board who seeks to
challenge the recall. Now, it’s off to court you go. So,
instead of recall cases being determined quickly in arbitration,
as required by the statute, recall cases will head off to court,
where justice is anything but swift. Instead of a forum where
no discovery is allowed like in arbitration, we go to court
where mountains of interrogatories and requests for productions
can be served against your adversary and where you can sit
parties down for deposition, after deposition, after deposition.
Instead of a relatively cheap inexpensive way to resolve recall
cases, we can spend tens of thousands of dollars on each case.
What a win for the lawyers!
Or…….even if the attempted recall is obviously defective, even
if every vote is fraudulent, even if the procedure was done
wrongfully in violation of law, you can choose to accept it I
guess and reward the illegal behavior and save the unit owners
some money. You can also agree to sell your home and just move
out.
Again, the recall statute was only broken in one way, but it
took real guts to fix it. The recall statute worked very well,
unless and until a Board and their counsel came up with
frivolous defenses to certifying a recall. Several defenses
like:
That’s not really the unit owner’s signature on the recall
ballot;
b) The
unit owners who signed the recall ballot were duped into
signing;
c) The
person who signed the recall ballot was not the person
authorized to sign on the voting certificate (yet the
association did not require voting certificates in the last
election);
are all routinely and repeatedly struck down by arbitrators,
year after year, case after case. That didn’t stop Boards and
their counsel from using these frivolous defenses year after
year after year as reasons for failing to certify a recall. As
a result, the process needlessly dragged on and on with no
punishment to the association or their counsel for deliberate
delays
So here’s how you fix it. You adopt a procedure that already
exists in every civil case in court. Without getting too
technical, Florida Statute 57.105 allows a judge to award
attorney’s fees against a losing party and their attorney who
files a claim or defense that the losing party or the losing
party’s attorney knew or should have known:
(a) Was not supported by the material facts necessary to
establish the claim or defense; or
(b) Would not be supported by the application of then-existing
law to those material facts.
An attorney files a frivolous defense to a recall – hit the
board and their counsel with attorney’s fees and costs.
A unit owner representative files fraudulent ballots, hit that
unit owner with prevailing party attorney’s fees and costs.
Maybe, just maybe, the shenanigans would stop if there was a
monetary penalty attached to it.
I also do not see this as an “us vs. them” situation. Unit
owners v. Board members. All of us should want a system in
place that would leave in tact the ability to remove a Board
member by the majority, but only after that board member
received due process. That’s what our justice and legal system
is all about. Nothing else should be tolerated, especially a
system that makes the recall “immediate.” We don’t convict a
criminal “immediately” upon his arrest, we don’t award a
plaintiff in a civil case a verdict “immediately” upon his
complaint being filed against the defendant and we shouldn’t
kick a person off the board “immediately” after being served
with recall ballots. Our system of due process and fair play
requires nothing less.
There may not be a “perfect” system --- but as a result of the
order by Chief Arbitrator James Earl, the current situation
needs to be fixed ---- and quick.
FINAL ORDER OF DISMISSAL
