A discussion of routine & complex issues which confront all types of shared ownership communities.

Condo and HOA Law Blog By Donna DiMaggio Berger, Esq.

Condo and HOA Law Blog By Donna DiMaggio Berger, Esq.
This blog covers every topic under the sun related to condominiums, cooperatives, HOAs, timeshares and mobile home communities from the unique perspective of attorney Donna DiMaggio Berger.

Monday, November 07, 2011

How much thought goes into the selection of your community's Fining Committee?

Last week I was required to report for jury duty in Broward County. I arrived at 7:45 am along with many of my fellow Broward County residents and spent the rest of the day in Voir Dire for a criminal trial. I was not ultimately selected for the jury (most lawyers aren't) but the lengthy jury selection process made me think about how much thought goes into selecting the right jury for the prosecution and the defense.

Voir Dire is the process by which potential jurors are questioned by both legal sides to determine their backgrounds and any potential biases before being selected to serve on a jury. Since this was a criminal trial, some of the questions asked included if the jurors had friends or relatives who were lawyers or members of law enforcement. Why is this important? If a juror has had much exposure to criminal lawyers and law enforcement, the fear is that he or she may bring this background with them into the jury room and may disregard any instructions given to them by the judge. What if a juror has been a victim of the same type of crime for which the defendant stands accused? Obviously, the defense will have some concerns that such a juror will struggle with impartiality throughout the trial.

Given the weighty issues usually being considered inside our courtrooms, it is no surprise that a selection process like Voir Dire exists to ensure the fairest possible outcome for a trial. While the matters being heard by most Fining Committees serving in private residential communities are not nearly as dire, they can still impact people's homes and wallets. Just how much thought is given to the composition of those fining committees?

In a Florida condominium, for example, neither board members nor persons residing in a board member's household may serve on the fining committee. In a cooperative, the statute merely says that the fining committee shall consist of "other unit owners". In an HOA in Florida, the requirements for fining committee eligibility are a lot more specific. An HOA fining committee must consist of at least three members appointed by the board who are not officers, directors or employees of the association or the spouse, parent, child, brother or sister of an officer, director or employee of the association.

Still, none of the Florida common interest ownership statutes take into account the fact that folks serving on fining committees bring with them their own personal backgrounds and potential biases to the task at hand. Since the statutes lend no assistance in this regard, does your association inquire about the fining committee members' past experiences in order to ensure the most fair and just results? Have any of the committee members personally been fined in the current community or a past one? If so, for which kind of rule infraction? What if a member of the established fining committe is also involved personally with the rule violation at hand? For example, if a person is being fined for parking illegally on a swale and the swale happens to be in front of the house of a member of the fining committee, does that pose a problem or a conflict?

If the board is not asking these questions of potential fining committee members, how then are they selecting these folks for service? Is anyone who expresses an interest put on the committee or anyone the board knows personally will serve without regard to past background and experiences?

The Voir Dire process reminds us that being asked to pass judgment on your peers is a serious matter. When asked directly by the prosecutor and defense counsel whether or not they could render a fair and impartial decision in the trial at hand, some of my fellow potential jurors answered honestly that they could not. How would they have known that, however, if they had not been asked?

This work by Donna DiMaggio Berger, Esq. is licensed under a Creative Commons Attribution-NoDerivs 3.0 Generic License.

1 comment:

Anonymous said...

My experience has been an almost total lcak to participation by the membership. No one wants to RAT OUT their fellow members. They want the safety of a well run community but do not want to be the heavy. They call the manager to get the Glass bottles out of the pool rather the tell the ower or guest themselves.

ShareThis