ATTORNEY LETTER TO BOARD MEMBER:
CEASE AND DESIST DEMANDING RECORDS AND STOP THREATENING THE MANAGER!
An Opinion By Jan Bergemann
President, Cyber Citizens For Justice, Inc.
President, Cyber Citizens For Justice, Inc.
Published April 19, 2011
It all started as a simple record request -- something that happens many times daily in Florida's community associations.
Only in this case the person making the request was an elected board member, trying to prepare information for an upcoming board meeting -- the elected board member hoped to help fulfill her fiduciary duty to serve the people that elected her by being better informed.
But she had obviously not counted on the unwillingness of the management company to allow her to inspect the records as requested. Because, believe it or not, CAM Jean LeGrys from the Continental Group e-mailed back:
Please be advised that Fla Statutes, CH 720, were amended in July 2010 stating that all requests for document inspection must be submitted via certified mail, return receipt requested. As such, I will not be responding to the emails and letter delivered to the office front desk for documentation until such time as a certified letter is received. Thank you for your cooperation. Regards, Jean LeGrys |
The board member, unhappy with this response, e-mailed back, complaining about the way the management company dealt with this request -- only to receive this e-mail from Jeff Schiff, Regional Director of The Continental Group:
| You have known since last year all document requests must be received by TCG certified mail, any requests not sent in that fashion will be ignored. Therefore any requests you have made to Jean should be sent to my attention CERTIFIED MAIL. Thank you in advance for your cooperation, Jeffrey Schiff |
The board member, getting really frustrated with the way the members of the management company treated her, fired back an e-mail saying that she might consider filing a complaint against the CAM license of the manager involved.
What these folks obviously don't understand is the wording of FS 720.303(5), which clearly doesn't say that all record requests have to be made in writing by certified mail. It actually says that only a member who requested records by certified mail "is entitled to the actual damages or minimum damages for the association's willful failure to comply with this subsection."
And the board member surely didn't intend to sue her association for damages. Actually, these kinds of e-mail exchanges are very common occurrences in community associations where the word "TRANSPARENCY" seems to be a word from a foreign language that the folks in charge don't understand.
Altogether nothing unusual, until the board member received a hilarious letter from the association law firm, Becker & Poliakoff, by certified mail, with the Subject Line: Records Inspection; Threatening Manager [Name and address of board member was removed from document for privacy purposes]. Over the years I have seen many letters containing very twisted interpretations, but this one surely fits in the TOP TEN LIST of ridiculous letters. But when I saw that this letter was signed by attorney Robert Rubinstein, I really stopped wondering. This name will always stay prominent in my memory. Rubinstein was the attorney who tried to stop state-appointed election monitors, petitioned for by the condo owners, from conducting the annual election in the Playa del Mar [ATTORNEY ALLEGEDLY VIOLATES FLORIDA STATUTES].
When reading the letter, I was honestly impressed by the way Rubinstein was trying to justify the unwillingness of board president and managers to allow the board member to inspect the requested records.
"There is nothing in Chapter 720, Florida Statutes, and, in particular, Florida Statutes, Section 720.303(5), that gives directors any right to inspect the Association's official records or gives directors any rights different from owners." But don't forget, FS 720.303(5) speaks specifically of members, not directors and/or board members.
But then the Rubinstein's explanation gets even worse: "The reason some officers or directors have access to certain records without having to make a written request to inspect those records is because those directors or officers have specific duties that require access to those particular records in order to fulfill their duties. For example, the Treasurer is required to keep and maintain the financial records, so the Treasurer must have access to the financial records in order to keep and maintain them. This is not a records inspection. This is access to the specific records needed to carry out the duties of the Treasurer. However, that does not give the Treasurer any right to inspect other records. In that case, the Treasurer would have to make a written request to inspect those other records, like any owner. You, as a director, not an officer, who does not have any specific duties assigned, have no right to access any records because none are needed to fulfill your assigned duties, since you do not have any assigned duties. Nevertheless, should any specific duty be assigned, you would have access to those records needed to carry out that specific duty. For example, if you were asked to approve a raise for an employee, you would be entitled to see the records showing what that employee was paid and what duties that employee performed, in order to make an intelligent decision on the proposed raise, but otherwise, you could not simply inspect the employee's personnel records out of curiosity to see what that employee is paid."
In other words, a president doesn't have access to the financial records, since he/she is not the treasurer. And the treasurer has no access to the minutes, since he/she is not the secretary. And a simple board member, who holds no specific office, shouldn't have any special access to the association documents -- since he/she has no designated duties.
But then Rubinstein is outdoing himself: "As you are familiar with the Board's rules governing records inspections, you should know that you, like any owner, are entitled to only one records inspection per month. Further, you cannot make a partial inspection of records you requested, then demand to inspect additional records when you complete your initial inspection. That constitutes a second records request within the same month and is prohibited. Because you can only make one records inspection per month, any and all additional records requests within that month are null and void and cannot be honored. You will not be entitled to inspect those additional records, unless you wait until the following month and make another written request to inspect those records."
In other words: "You already made a partial record request, you can't make another one this month. Who do you think you are, constantly requesting records in order to familiarize yourself with the problems that may be discussed at the next board meeting? Just vote YES when the president says so and don't bother the well-paid management company, our friends from Continental, with your useless record requests. Certain board members don't like board members who are well informed. They could bring up things at the next board meetings that owners in the audience shouldn't hear!"
A little tidbit on the side: During the meetings of the HOA Task Force in 2003-2004 it was discussed what to do if FS 720 is silent on a certain matter. The advice given by specialized attorneys: Look in the laws where these statutes came from -- especially in FS 607 and FS 617. And by taking a closer look at FS 607 you'll find 607.1605, containing a provision dealing with the right of directors to inspect corporation records. There we again find the fancy word "reasonable" that seems to haunt us when trying to find clear understandable wording. Would you agree with Rubinstein that only treasurers can inspect financial records and only secretaries can inspect minutes? Or a president cannot inspect any records since his/her duties are limited to calling meetings and chairing them, as in most association bylaws?
Last but not least, the other big issue of the letter: Threatening the manager! This is what Rubinstein has to say about it: "In addition to the above, it has come to our attention that you threatened to file a complaint to revoke the Association's manager's license, if she did not comply with your demands to inspect the records. Since your demands to inspect the records were not valid and in violation of the Association's rules, as set forth above, your threat was unfounded. More importantly, such coercion creates a hostile working environment, which constitutes employment discrimination or harassment, exposing you and the Association to liability. Your threats and improper demands also prevent the manager from performing her work and interfere with the Association's business."
Attorney Rubinstein forgets that it is EVERYBODY'S right to file a complaint against the CAM. And it's up to the DBPR to decide if the complaint has merit or if they close the case without taking action. As everybody else, Rubinstein has a right to state his opinion, and explain his feelings to a board member by certified mail, especially if he gets well paid for it. But the best part in this letter are definitely the words "…coercion creates a hostile working environment…" Considering that many of the owners in this community think the president is a dictator and that the working environment is already down the drain, Rubenstein’s letter surely throws more fuel on the flames.
The last sentence of Rubenstein’s letter is even more than just a veiled threat: "Therefore, demand is made for you to immediately cease threatening the manager, immediately cease making invalid demands on the manager and immediately cease interfering with the Association's business. Time is of the essence."
Especially considering the fact that Rubinstein's Becker & Poliakoff colleague Chris Draper just filed a lawsuit against another member of this same community, it actually seems more than just a threat. Draper stated in that complaint as one of the reasons for filing the lawsuit: “... tortuously interfering with the ASSOCIATIONS advantageous business..."
In case I forgot to mention it: This is the SOUTHWIND LAKES HOMEOWNER'S ASSOCIATION, INC. in Boca Raton, the same board that just wasted lots of good association funds by filing, in my opinion, a frivolous lawsuit against an owner who maintains an unofficial website. See: LAWSUIT TO WASTE GOOD OWNERS' MONEY!
The pattern of wasted association funds continues!
| 607.1605 Inspection of records by directors.-- (1) A director of a corporation is entitled to inspect and copy the books, records, and documents of the corporation at any reasonable time to the extent reasonably related to the performance of the director's duties as a director, including duties as a member of a committee, but not for any other purpose or in any manner that would violate any duty to the corporation. |
| FS 720.303(5) INSPECTION AND COPYING OF RECORDS.--The official records shall be maintained within the state and must be open to inspection and available for photocopying by members or their authorized agents at reasonable times and places within 10 business days after receipt of a written request for access. This subsection may be complied with by having a copy of the official records available for inspection or copying in the community. If the association has a photocopy machine available where the records are maintained, it must provide parcel owners with copies on request during the inspection if the entire request is limited to no more than 25 pages. (a) The failure of an association to provide access to the records within 10 business days after receipt of a written request submitted by certified mail, return receipt requested, creates a rebuttable presumption that the association willfully failed to comply with this subsection. (b) A member who is denied access to official records is entitled to the actual damages or minimum damages for the association's willful failure to comply with this subsection. The minimum damages are to be $50 per calendar day up to 10 days, the calculation to begin on the 11th business day after receipt of the written request. |
No comments:
Post a Comment