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BUSINESS
JUDGMENT RULE: GREAT RULE TO HIDE FOR THE BAD GUYS?
By
Jan Bergemann
Published
February 27, 2015
It's
really a sad state of affairs when the welfare of our families
in our homes is regulated by the BUSINESS
JUDGMENT RULE!
It
may have once been well-intended, but in my opinion it’s
nowadays more a great place to hide for the bad guys than a rule
protecting the good guys.
Let’s
make no mistake: “Acting in Good Faith” is a matter of
opinion. I can’t consider it “acting in good faith” if the
person using this defense has been told – and even given in
writing – that whatever he is doing is violating the statutes
and the governing documents of the community.
Board
members should be the first ones to follow rules and laws,
before forcing neighbors to obey by rules these same board
members plainly ignore.
Board
members are supposed to learn the basic rules by attending board
member certification seminars or they can sign affidavits
stating that “he or she
has read the association’s declaration of covenants, articles
of incorporation, bylaws, and current written rules and
policies; that he or she will work to uphold such documents and
policies to the best of his or her ability; and that he or she
will faithfully discharge his or her fiduciary responsibility to
the association’s members.”
Guess
what: Quite a few of these board members still ignore the laws
and rules – in my opinion knowingly and willfully – and are
still protected by the business judgment.
How
can somebody state that he/she acted in good faith when spending
reserve funds for other purposes than intended, spending
unbudgeted money for non-emergencies, making material
alterations without the vote of the membership, refuse to allow
owners to inspect the records, commit election fraud and/or
fining owners in a vigilante manner ignoring the laws and rules
– after attending such seminar and/or signing the affidavit as
required by law?
Should they still be allowed to claim that they “acted in good faith?”
“Good”
board members – the ones following laws and rules – don’t
have to be afraid that they have personal liability for their
action as board members.
And
the “bad” guys are hiding behind the “Business Judgment
Rule” – to the detriment of their neighbors.
Do
you still think the “Business
Judgment Rule” is a good rule?
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Jan Bergemann is president of Cyber Citizens For Justice,
Florida
's largest state-wide property owners' advocacy group.
CCFJ works on legislation to help owners living in
community
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associations. He moved to
Florida
in 1995 - hoping to retire. He moved into a HOA, where the
developer cheated the homeowners and used the association dues
for his own purposes. End of retirement!
CCFJ was born in the year 2000, when some owners met in
Tallahassee
- finding out that power is only in numbers. Bergemann was a
member of Governor Jeb Bush's HOA Task force in 2003/2004.
The organization has two websites to inform interested
Florida
homeowners and condo owners:
News Website: http://www.ccfj.net/.
Educational Website: http://www.ccfjfoundation.net/.
We think that only owners can really represent owners, since all
service providers surely have a different interest! We are
trying to create owner-friendly laws, but the best laws are
useless without enforcement. And enforcement is totally lacking
in
Florida
!
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