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DISCIPLINE - NECESSARY EVIL TO KEEP WRONGDOERS IN CHECK?
By
Jan Bergemann
Published
November 1, 2013
It seems that certain board
members, community association managers and association
attorneys are only too eager to discipline owners, who – in
their opinion – violate the rules, sometimes even using “rules”
made up as they go along. Recently we read reports [Kissimmee
HOA walks off with residents' trash bins] about board
members ordering the landscaping company to “steal” the
trashcans of owners who failed to hide their trashcans in a
timely manner. Others see “discipline” as a welcome method to
bolster their income. Certain dictatorial board members even use
discipline (fining) to shut up owners who dare to criticize
actions of board members or even the president.
But discipline goes both ways –
and even some board members, community association managers and
even attorneys have faced serious discipline in the past.
Too many board members have
relied on the “Business
Judgment Rule” only to realize that this rule is not
always protecting them against the mischief they are coming up
with, often to the financial detriment of their neighbors.
Even if the DBPR thinks that it
is their job to protect wayward CAMs against the complaints of
board members and owners, some CAMs have been disciplined, but
only in extreme cases. The DBPR always allowed CAMs to use the
“Nuremberg” defense (I acted on orders!) to avoid
prosecution against violations of the Florida statutes.
Hopefully that will stop now with the new provision added to
FS 468.436(7) -- Disciplinary proceedings. Maybe the
DBPR will now take their job of regulating and disciplining CAMs
more seriously.
Believe it or not, even
attorneys have been disciplined for abusing their office. The
most “infamous” case of an attorney being disbarred for acting
recklessly is most likely the case of the
Westwood Community Two, Inc..
In this case the Florida Supreme Court disbarred an attorney
acting as president of a homeowners’ association. The reasoning
as stated in the ruling of the Florida Supreme Court: “What
is clear from our review of this case is the inherent danger to
the public and the legal system when an attorney ceases to
objectively evaluate legal matters in which he is personally
involved. Klein's trail of misconduct began as a legitimate
attempt to qualify his community as one for older persons under
the Fair Housing Act.”
It shows that board members,
CAMs and even attorneys are not indemnified against criminal
actions – even if some of them seem to think so! Once in a while
there comes a bad awakening!
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