Nothing to see here. Move along.
Just a couple of trouble-making residents and HOA election losers causing a stink, say Christie Von Fintel of Alliant Property Management and Gateway Greens HOA President Ed Tinkle.
Von Fintel is the Community Association Manager at Gateway Greens.
For years the elections at Gateway Greens followed a simple procedure: People voted, the votes were counted, the results were announced and unless someone asked for a re-count all the votes were destroyed.
Von Fintel and Tinkle both separately agreed to the Sun that the Gateway Greens by-laws say that’s exactly how the elections there should be conducted.
But apparently it’s been discovered that part of the Gateway Greens by-laws violate a Florida law, say Von Fintel and Tinkle.
One of the issues that was up for a vote during the March 12, 2015 annual meeting and election night for Gateway Greens was whether the HOA should alter the way it manages its money.
The way Von Fintel explained it, Gateway Greens keeps its money in separate accounts for separate uses. Von Fintel used a household as an example, saying it would be as though there was one bank account for roof repairs, another for air conditioning repair, and another account for everything else.
What happens if you don’t have enough money in the roof repair account and you need money from the other accounts to pay for a roof repair, Von Fintel wondered.
The CAM explained that the better way forward was to get rid of all the sub-accounts and put all of the money in to one account for general use.
At the recent Gateway Greens election the residents in attendance voted and struck down that measure. They wanted the money kept in separate accounts.
The votes on that issue were counted, the results were announced and applause filled the room according to one resident who was there.
And in accordance with the HOA by-laws … the votes were destroyed.
But the following day as Von Fintel was going over paperwork she says she discovered some proxy votes that were not counted that would change the outcome. Von Fintel says she consulted with a lawyer and on the advice of the attorney she reversed the election result – meaning all of Gateway Greens’ separate accounts would be combined in to one general use account.
A few residents called foul.
Along with one phone call to Von Fintel, a series of emails were exchanged between the Sun, Tinkle and Von Fintel trying to clarify what would justify the preserving of the votes that should have been destroyed in accordance with the HOA’s by-laws.
If those votes were destroyed – how could they be counted at a future date and reverse the election result?
Tinkle and Von Fintel, in separate emails to the Sun, told us that according to Florida Statute 720.303(5) they were actually required to preserve the voting ballots and proxies for seven years. That’s why they did not destroy them and how they could be used later to change the outcome.
We read 720.303(5), which is part of a section of laws that govern HOAs, and it says that “official records shall be maintained within the state for at least 7 years”.
However, as legislatures tend to do, in the section immediately before – section 720.303(4), a section aptly named “OFFICIAL RECORDS” – the law defines exactly what constitutes an official record that needs to be preserved.
It doesn’t say anything about keeping people’s votes.
Meeting minutes, insurance policies, tax records and a bevy of other financial documents – all must be preserved and made available to inspection by residents.
But not people’s votes.
We pointed all that out to Tinkle and Von Fintel. Neither of them agreed with us.
“While it is true that [Gateway Green’s] by-laws say that immediately after the results of the election the ‘ballots’ are to be destroyed, both our Attorney and our Management Company are of the opinion that this is superseded by Chapter 720. 303(4)(l) which states: All other written records of the association not specifically included in the foregoing which are related to the operation of the association” Tinkle said.
Tinkle and Von Fintel are saying that a resident’s voting ballot or proxy constitutes a ‘written record of the association’ that must be preserved for 7 years under state law.
So naturally then, we could view all the ballots from last year’s election? Or the 2009 election? Those elections have occurred within the past seven years.
We asked both Tinkle and Von Fintel that question.
Tinkle responded: “Whether or not [preserving the votes] has been done in the past is immaterial, we now have this legal opinion!”
We’ll take that as a ‘No.’
Now if it seems unlikely to you that the Gateway Greens HOA by-laws were written in such a way that they violated Florida law, you’re not alone.
After-all, weren’t they written by a lawyer?
What lawyer would write HOA by-laws that specifically called for the destruction of election records that were required to be preserved under Florida law?
It doesn’t make sense to us, but we haven’t consulted with an attorney.
However Tinkle and Von Fintel say they have, so this is what’s happening: the Gateway Greens election procedures have been retroactively changed, and as a result more of Gateway Green’s money will be pooled in to one account so that the HOA’s management will have easier access to the funds.
Not only are they allowed to do that, the law requires them to, say Von Fintel and Tinkle.
Will Alliant now begin applying Florida 720.303(5) to all election ballots of all the associations it manages and keep every vote ballot and proxy for seven years?
Will they notify those HOAs of this new legal requirement they just now discovered?
As a property manager for many HOAs … haven’t Alliant’s lawyers read the Florida HOA laws up until now?
Or did Alliant’s lawyers read the HOA laws and somehow missed that law for all these years?
For now, we have more questions than answers.
And the Gateway Greens HOA board has more leeway with the resident’s money.