Should Candidates for the Board of Directors be Screened?
Florida Statutes Chapter 718 and Chapter 720 contain relatively few eligibility requirements for individuals interested in running for the board of directors in their condominium or homeowners’ associations. One of the eligibility requirements relates to whether the individuals have been convicted of a felony and lost their voting rights. Since this information is not readily available for most people, many associations inquire whether they should screen all individuals before they are placed as a candidate on their associations’ election ballots.
Section 718.112(2)(d)(2), Florida Statutes, states “[a] person who has been convicted of any felony in this state or in a United States District or Territorial Court, or who has been convicted of any offense in another jurisdiction which would be considered a felony if committed in this state, is not eligible for board membership unless such felon’s civil rights have been restored for at least 5 years as of the date such person seeks election to the board.” Section 720.306(9)(b), Florida Statutes contains identical language. These provisions lead associations to believe it necessary to implement background screening requirements as part of their election processes.
A background screening requirement for prospective candidates may cause issues for an association. If a screening requirement is implemented, and all prospective candidates agree to the background screening, there is little reason to question the practice. Over time background screening may become a part of the association’s election practice, but what happens if a candidate refuses to comply with the screening requirement?
If an individual refuses to go through the screening process and the association has no documentation indicating such person has been convicted of a felony or has not yet had his or her voting rights restored for 5 or more years, the association is unable to determine whether the person is, in fact, not eligible under Section 718.112(2)(d)(2) or Section 720.306(9)(b), as applicable. However, if as a result of not going through the screening process the individual is not placed on the ballot as a candidate, but was eligible and should have been on the ballot, the entire election may be subject to challenge. In essence, non-compliance with the screening process creates a presumption of ineligibility, which may result in an individual being denied his or her right to be a candidate and possibly the right to serve on the association’s board of directors.
Fortunately, Florida’s legislature gave associations an “out” in the event they discover someone was not qualified to serve on the board of directors due to having been convicted of a felony and losing his or her civil rights. Specifically, Section 718.112(2)(d)(2) states “[t]he validity of an action by the board is not affected if it is later determined that a board member is ineligible for board membership due to having been convicted of a felony.” Substantially similar language has been incorporated into Section 720.306(9)(b). Since there is no statutory procedure or requirement for screening candidates to determine their eligibility, the legislature likely realized associations would find out about the ineligibility after the election and therefore protected the decisions made by those boards of directors prior to the discovery of the director’s ineligibility.
It may be possible to include background screening requirement(s) in associations’ governing documents. Albeit, this is not a common provision, and it is not clear whether such a provision would survive a challenge since it arguably conflicts certain individuals’ rights to serve on their association’s board of directors. In light of this and the other complexities surrounding the homeowner and condominium association election process, associations are encouraged to review their election processes with their legal counsel to ensure they comply with both the associations’ governing documents and applicable Florida law.