Sharing Of Background Info Legal?

The President of the Association has access to the background investigations that are carried out on prospective buyers.

She has been found to have used that information in an effort to turn owners against each other. In the most recent example, she informed an owner that ANOTHER owner was a convicted felon. She was using the information as a wedge, to help her in an upcoming election to retain her President position on the Board of Directors.

This occurred in Florida. Are there any legal ramifications to her use of this information for her own benefit?

It simply seems SO wrong!

She isn’t revealing anything that cant be found on the net.

Her gossiping, however, reveals her character.

Why wouldn't the HOA funds be used for background checks? What exactly is personal about being a convicted felon? I get notices all the time about sex offenders moving into my neighborhood. Plus can look up criminal past on Google. It's NOT private information. Matter of fact in some states you have to reveal certain criminal pasts.

So I don't see anything wrong other than you don't like it. Suing your HOA is suing yourself and your neighbors. Are you really wanting to take that on? Are you willing to run for the board yourself? If not, then don't vote for that person. Simple as that.

Well, I don't know. It's certainly feels sleazy. On the other hand, if the information is publicly available and accurate, I don't know that the "victim" has much recourse. You could also make a good argument that she had an obligation to disclose this information to the membership if she found out that a candidate was a convicted felon.

Personally, I wouldn't want a felon on my board of directors - good grief, man! And you think your board is awful...

There are several types of felonies. To see what FL defines as felonies see:

https://www.criminaldefenselawyer.com/resources/criminal-defense/state-felony-laws/florida-felony-class.htm

Therefore, the conviction may or may not be a real concern (but it's great for having emotions make the decision rather then rational thought).

First problem: Like SueW6 indicated, the question is whether the President used information that was truly private. Convicted felon records are typically public information. Joe, can you /legally prove/ that she used the HOA's records to assert someone was a convicted felon?

Second, problem: Some HOA members might appreciate being told of this (probably publicly available) information.

Third problem: Florida is a state that has rules about convicted felons serving on HOA and condo boards. It is possible that this felon is legally not eligible to be on the Board. For Florida HOAs, see Florida Statute 720.306, https://www.flsenate.gov/Laws/Statutes/2011/720.306 . Florida condo law says the same or similar. See Florida statute 718.112 .

Hopefully some of the Floridians at hoatalk will chime in.

Define "in default of their homes".

If people haven't been paying their assessments and the board liens their homes, that's absolutely public information and will be available on your county recorder's web site for anyone to see. If a lender forecloses on someone's home, that information will be made public so that potential buyers can bid during the auction.

You need to distinguish between public and private information, and information that the community should be aware of vs. information they have no need to know.

Depending on the details of the felony, the person may pose a safety risk (assault, tier 3 sexual offender), and the board has a duty to make residents aware of this risk - in fact, concealing the information may make the board liable if someone were to be injured. If the person committed a white collar crime (fraud, embezzlement) then he/she should not have access to the association's finances or other records, and the community needs to know this before they elect the person to the board.

I agree that the rest of the board should know. I can see reasons for disclosing to the entire community and reasons for not doing so.

If your community is self-managed and your Treasurer receives a notice of default, that's a reason for concern. I believe that anybody can do just about anything if they're put under enough pressure, and giving someone with financial issues access to the association's pot of money is asking for trouble.

On the other hand, it's somewhat less concerning to me if the person is unable to write checks or access association funds in some other way. You could argue that poor judgement led to the person's financial troubles, but it's equally likely that something like medical debt is to blame. Unfortunately you won't know which it is unless the person talks about it.

In both cases I'd err on the side of caution, and at the very least vote to remove the person from the Treasurer position, change passwords on any online bank accounts, remove the person's access altogether, etc. Not sure about removing the person from the board altogether - I could go either way depending on circumstances.

I was thinking along the same lines. The only felons that are worth a check are sex offenders, especially those barred by law from entering certain zones around schools, playgrounds etc and that is EXTREMELY dependent on the property's location near such areas.

An interesting article on background checks in Florida.

Notice that there's no mention of "the information is available to anybody anyway so there's no problem revealing it". If an association expends funds for background checks then the results must be treated as confidential information. I don't have time to research this at the moment, but I'm pretty sure that's the way it should be handled. If the board authorizes a background check that reveals a prospective owner/tenant/visitor has a criminal record for passing bad checks in Idaho then that fact may not be revealed, regardless of the fact that the same information may be available from Idaho's online criminal database (for example).

Here's another article from the Palm Beach Post. It's 7 years old but I have no reason to doubt it's no longer relevant. In there it says,

"Under Florida law, all information gathered during a background check is strictly confidential."

Again I don't have time right now to research this, but I think it's pretty clear. An HOA does a background check that reveals something troubling. The HOA cannot reveal that information whether or not it's public information available elsewhere.

I wonder if this law was meant to refer to financial and other personal information. Of course it doesn't say so explicitly, so I guess you can't read that into it.

This is another of those laws that puts the board between a rock and a hard place. What if the board obtained information that a new resident had a history of violent behavior, this person went on to assault another homeowner, and it subsequently came out that the board knew about the felon's history and did not disclose it? Even if a court finds that the HOA acted properly, it will still mean time and money spent on the issue.

We've been talking about Florida, but in Ohio things are a bit different. Our attorneys have talked about the board's obligation to disclose information if there is a sexual predator (the most serious category) in the community. A quote from a newsletter article:

"Remember, a “sexual predator” is likely to engage in future sexual offenses. A board’s decision to not provide this information to the residents could lead to claims of liability if a sexual offense occurs. Worse than the claim of liability could be the board’s guilt over possibly being able to have prevented the sexual offense. By informing the residents of the presence of a sexual predator, the board is allowing residents to take individual precautions that they deem appropriate. Furthermore, notification may also limit any chance of a claim of liability against an association."

For the less serious types of offenses, they recommended putting out a notice or an article in the newsletter stating that it had come to the board's attention that a sexual offender may be living in the area, and directing people to contact the sheriff's department for further information. This seems like the safest way of getting the information out there without improperly disclosing anything.

That’s some good stuff there Geno....Thanks!

The woman that divulged the information was running for re-election to the board. The owner, that has the ‘convicted felon’ background was ALSO running for election to the Board. In Florida, people with a convicted felon background ARE allowed to serve on a Board as long as they’ve had their rights restored for five or more years. This fella isn’t a threat to anyone and he paid his price for his actions. This criminal activity and conviction all took place in the early 1980s.

The woman obtained her knowledge of his background from the Association background check process. We know that to be a fact because she shared that bit of information with at least ONE of the owners (aka: voters) that she’d lobbied to vote for HER instead of the ‘convicted felon.’ It’s unknown, at this time, exactly HOW MANY people she has told WHAT to as a result of her having access to personal & private information. Not only criminal background info, but also credit info, past residence info, etc. ALL funded via Association money.

For what it’s worth; She also gives everyone the creeps as she positions herself on her upper-floor balcony and scopes out the people at the swimming pool with her binoculars.

Still not seeing the problem. That person can still get voted for. Nothing stopping people from voting for that person is there? They are a convicted felon plenty of them have won political seats. Can think of a few famous Mayors who won and they were caught doing much worse.

It's a PERSONAL choice for whom you vote for. I can vote for a convicted felon if they are going to represent me on the board. There are many reasons someone doesn't get voted for. Just want to assign a reason. Which most likely is your own.