Q: It recently came to light that one of our board members has an ongoing dispute with another unit owner, resulting in the unit owner taking out a restraining order against the board member. This is very concerning. Shouldn’t this result in the board member being removed from the board of directors of our association? (C.H., via e-mail)
A: If one of your unit owners were able to obtain a restraining order against a sitting board member, this would certainly be concerning. However, the fact that an order was entered would not in and of itself prove that it is an issue involving the association and in any event, would not be sufficient legal ground to remove a board member from the board of directors of a condominium association.
Generally, board members can only be removed from the board of directors before the end of their term through a recall action by the unit owners. The unit owners can recall sitting board members with or without cause, either through holding a special member meeting for the purposes of recalling a board member or through written recall agreements. Whichever process the unit owners use to obtain the recall of a board member, the recall requires the affirmative approval of a majority of all members in the association.
However, there are certain instances where a board member is automatically removed from the board of directors. The Florida Condominium Act addresses a number of situations where a board member is considered to have either abandoned their office or is removed by operation of law. For example, if a board member becomes 90 days or more delinquent in paying any monetary obligation due to the association, they are deemed to have abandoned their office.
If an officer or director is charged with the felony theft or embezzlement of the association’s funds or property, in that case, they are considered to have been removed from office, creating a vacancy to be filled according to law until either the end of their term or until the charges are resolved.
However, the mere existence of a legal dispute and a board member, whether in the board member’s personal or official capacity, is not a lawful grounds for automatic removal, though it would likely create a conflict of interest requiring that director to abstain from voting regarding certain issues relative to the owner they are in court against.
Q: A question has come up from my homeowners’ association as to who is permitted to be an officer. Recently, following the election of the board of directors at our annual meeting, the board members voted to appoint a non-board member homeowner to be treasurer. This person is a retired accountant and undoubtedly is qualified to be our treasurer. However, there is concern that this person is being asked to serve as an officer of the corporation when they are not a member of the board of directors. Is this permitted? (M.O., via e-mail)
A: Possibly.
Who is eligible to either serve on the board of directors or serve as an officer of the corporation is generally addressed in either the articles of incorporation for the association or the bylaws for the association.
For example, it is not uncommon for documents to state that while the president and vice-president must be members of the board of directors, other officers, including treasurer and secretary, can be non-board members. Other bylaws require all officers to be directors. I have seen some documents stating that none of the officers need to be directors, which is common in the general corporate world.
In situations like this, it is important to ensure the treasurer is covered by all of the association’s insurance policies, including the fidelity bond and directors’ and officers’ liability policies. Officers should also be entitled to indemnification against legal claims in the association’s articles of incorporation or bylaws.
Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.