FLS Friday Forum is a free write-in column authored by Brian R. Fellner on topics of law affecting community associations. To submit a question, email Mr. Fellner at bfellner@flslawyer.com. All posts are for informational purposes only and do not constitute legal advice. Only your individual attorney can provide assurances that this information is applicable or appropriate to your particular situation. Nothing hereunder creates an attorney-client relationship between any reader and the author.
Community association manager Nancy in Washington, DC asks:
My community association asked about utilizing a nominating committee for its upcoming election. What is a nominating committee, and how can they help our association?
Nominating committees are a very useful tool that are underappreciated and not widely understood. In Maryland and DC (and the handful of other states I checked), the relevant statutes are silent on the issue of nominating committees, so their use and rules will be governed by each association’s individual governing documents. Many HOA declarations or condo bylaws reference or allow for these committees, and they can be a great aid. Like most community association functions, they can also be complicated to understand, and easy to misuse. Let’s take a look.
First, the concept of community elections is ordinarily that board members will be placed on the ballot prior to the annual meeting (where the vote takes place), usually after a “call for candidates” has been sent out. This concept can fail in several ways, however. First, sometimes an insufficient number of candidates submits their name. Also, interested parties may not be eligible, leading to flawed or invalid elections. Finally, people may nominate someone who is uninterested in serving, or fail to nominate themselves for any number of reasons despite a genuine interest.
Enter the nominating committee. As with any committee, it should be properly formed as prescribed in your documents (usually this means appointed by the Board). The committee should be given a strict role, clear guidelines, and its decisionmaking process should be spelled out in advance. That is, they should know if their actions must be completed by vote, or if the chairperson may make decisions on behalf of the entire committee.
A nominating committee can be a great help in preparing for an election. While they may not advocate for or against any candidate, they may vet potential candidates to ensure that they are eligible and interested. Your declaration or bylaws may require that any director be “an owner;” the nominating committee may confirm ownership of the relevant property in advance of the election. The declaration or bylaws may also require that a director be “in good standing,” meaning current on his/her assessments and free of violations. These also can be confirmed by the committee in advance of the vote. Finally, the nominating committee can reach out to potentially interested candidates to encourage them to run, or speak with candidates nominated by a third party to confirm their willingness to serve.
The nominating committee may also suggest some policies (so long as they are consistent with the declaration or bylaws) regarding how to allow for write-in candidates and the way in which nominations from the floor may be made. Candidates should be allowed to submit a biographical statement prior to the election; that can be distributed by the committee. They may also suggest to interested but ineligible candidates some alternatives – joining a committee, perhaps, or serving in a non-elected officer role.
Lastly, it is important to keep in mind what nominating committees may not do. Specifically, they may not exclude or prohibit otherwise qualified candidates; nominating committees in the past have been used to keep people from running, which is a no-no. Similarly, a nominating committee may not block or prohibit nominations from the floor. They may set procedures, but not ban such nominations. And as always, check with your community association attorney for the most up-to-date information in your jurisdiction; for instance, Florida recently passed a statute outlawing the use of nominating committees by condominiums.
In sum, a nominating committee can be a very useful tool for an association with a need to streamline and monitor eligibility issues at the election. The Board will want to be sure not to allow the committee to overstep its bounds by carefully defining its role and selecting its members.