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Subject: Sharing Of Background Info Legal?
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JoeM19
(Florida)

Posts:4


10/10/2019 2:12 AM  
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!
MelissaP1
(Alabama)

Posts:8601


10/10/2019 4:07 AM  
Perception much?

Former HOA President
SueW6
(Michigan)

Posts:586


10/10/2019 4:20 AM  
She isn’t revealing anything that cant be found on the net.

Her gossiping, however, reveals her character.
JoeM19
(Florida)

Posts:4


10/10/2019 4:44 AM  
Where I would have to draw the line is at the fact that Association funds were used to acquire the background information. If she had funded the research herself, then it becomes a personal issue between HER and the owner with the criminal past. (It reflects an issue he had back in 1982.)

Additionally, she used this information to disparage the owner’s reputation as an election was approaching. It appears to me that this is a classic case of misusing one’s ‘position’ for personal gain.

I guess the decision here is whether to pay $300 to consult an attorney OR to let the other 202 owners in the building know that their personal & private information is NOT being kept confidential. Everyone SHOULD have a right to expect a high level of confidentiality in matters such as this.

And you are exactly right....it says quite a bit about her character!
MelissaP1
(Alabama)

Posts:8601


10/10/2019 4:54 AM  
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.

Former HOA President
PaulJ6
(New York)

Posts:319


10/10/2019 5:39 AM  
Posted By JoeM19 on 10/10/2019 2:12 AM
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!




Doesn't the background check provider require that the person who orders the background report will use it only for lawful purposes?

When you run a credit or background check on online sites, you have to click to agree that you will use the report only for lawful purposes. I'd expect this to be the same. Sharing a background report with neighbors probably isn't lawful.
CathyA3
(Ohio)

Posts:459


10/10/2019 6:01 AM  
Posted By PaulJ6 on 10/10/2019 5:39 AM
Posted By JoeM19 on 10/10/2019 2:12 AM
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!




Doesn't the background check provider require that the person who orders the background report will use it only for lawful purposes?

When you run a credit or background check on online sites, you have to click to agree that you will use the report only for lawful purposes. I'd expect this to be the same. Sharing a background report with neighbors probably isn't lawful.




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...
SteveM9
(Massachusetts)

Posts:3362


10/10/2019 6:31 AM  

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


Seems like anyone could find this info out with all these new people searching web sites.


It simply seems SO wrong!


It would be even worse to elect a felon. She did everyone a favor, you should be grateful.

Typically people I've run into with convictions are not good people. They were only convicted of things they were caught for, that doesn't include the criminal things they do all the time they were never caught for.
TimB4
(Virginia)

Posts:16481


10/10/2019 6:42 AM  
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).
TimM11


Posts:302


10/10/2019 6:56 AM  
I didn't realize HOAs conducting background checks on prospective buyers was even a thing; it seems like a problem waiting to happen even if it is permitted in the docs.
AugustinD


Posts:1934


10/10/2019 9:05 AM  
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.
MarkW18
(Florida)

Posts:121


10/10/2019 9:30 AM  
So would it be alright for the HOA Board to list people in default of their homes in, say, the HOA newsletter?
CathyA3
(Ohio)

Posts:459


10/10/2019 10:04 AM  
Posted By MarkW18 on 10/10/2019 9:30 AM
So would it be alright for the HOA Board to list people in default of their homes in, say, the HOA newsletter?




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.
MarkW18
(Florida)

Posts:121


10/10/2019 10:16 AM  
You know, they have been served with a Notice of Default by the servicer of their loan. That is public information and maybe someone in the community could put two and two together and think maybe they are delinquent in their assessments.

This is information that should be shared to the rest of the Board, not just one individual. If this happened in an HOA I lived in, this person would be off the Board.
CathyA3
(Ohio)

Posts:459


10/10/2019 11:04 AM  
Posted By MarkW18 on 10/10/2019 10:16 AM
You know, they have been served with a Notice of Default by the servicer of their loan. That is public information and maybe someone in the community could put two and two together and think maybe they are delinquent in their assessments.

This is information that should be shared to the rest of the Board, not just one individual. If this happened in an HOA I lived in, this person would be off 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.
JohnC46
(South Carolina)

Posts:8730


10/10/2019 11:08 AM  
I would say what she did, sharing the information she came about having as being President is sleazy. Doing such on her own time and dime is a bit less sleazy but all if fair in war and politics.
KellyM3
(North Carolina)

Posts:1425


10/10/2019 11:16 AM  
Posted By TimM11 on 10/10/2019 6:56 AM
I didn't realize HOAs conducting background checks on prospective buyers was even a thing; it seems like a problem waiting to happen even if it is permitted in the docs.




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.
CathyA3
(Ohio)

Posts:459


10/10/2019 12:04 PM  
Posted By KellyM3 on 10/10/2019 11:16 AM
Posted By TimM11 on 10/10/2019 6:56 AM
I didn't realize HOAs conducting background checks on prospective buyers was even a thing; it seems like a problem waiting to happen even if it is permitted in the docs.




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.




At our attorney's recommendation, we amended our Declaration to prohibit Tier 3 sexual offenders from living in the community (Tiers 1 and 2 are OK). Tier 3s can own units - but they can't live here, whether they own or rent.

I'm not sure that sex offenders are the only ones worth checking. I'd like to know if I'm living next door to someone convicted of any violent crime, or even repeated non-violent crimes such as burglary. I did live next door to someone who'd never held a job in his life - he stole whatever he wanted and dealt narcotics. The only thing he didn't do what carry a gun. Not fun.
GenoS
(Florida)

Posts:3234


10/10/2019 2:01 PM  
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.
GenoS
(Florida)

Posts:3234


10/10/2019 2:11 PM  
The Florida HOA statute, i.e. FS 720.303(5)(c) says,

"Notwithstanding this paragraph, the following records are not accessible to members or parcel owners:

...

2. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a parcel."

If an HOA obtains a background check, the results must be kept confidential. No owner has the right to access that information. If they want to scour public information sources on their own, that's fine, but the HOA should not reveal it to them.

CathyA3
(Ohio)

Posts:459


10/10/2019 2:47 PM  
Posted By GenoS on 10/10/2019 2:11 PM
The Florida HOA statute, i.e. FS 720.303(5)(c) says,

"Notwithstanding this paragraph, the following records are not accessible to members or parcel owners:

...

2. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a parcel."

If an HOA obtains a background check, the results must be kept confidential. No owner has the right to access that information. If they want to scour public information sources on their own, that's fine, but the HOA should not reveal it to them.





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.
GenoS
(Florida)

Posts:3234


10/10/2019 4:26 PM  
A board can take action, but it still cannot disclose. There's no good reason to disclose it and to what and whose benefit if it did? A witch hunt mob complete with torches and pitchforks? A board has duties and responsibilities and gossip isn't one of them. A board has no business disclosing that information and I think it's a good law.

In 2016 HUD threw up more barriers to keeping people out based on their criminal records. it imposes significant burdens on those seeking to deny residence to someone based on a criminal record. Each case must be evaluated separately and it must be shown that such a person could reasonably be expected to pose a danger to the community. There was a lot of pushback to this new HUD criteria when it was published. Now THAT is an ill-advised regulation.

Link to 2016 Florida Today article "The Fair Housing Act and Criminal Background Checks".
JoeM19
(Florida)

Posts:4


10/11/2019 2:30 AM  
That’s some good stuff there Geno....Thanks!
MelissaP1
(Alabama)

Posts:8601


10/11/2019 4:09 AM  
It doesn't sound like this "convicted felon" was denied membership. Do not see why the President would need to pay for a background check if this is a HOA activity. If the President was renting/selling their OWN property, then it would be their own responsibility to do a background check. Your HOA has CHOSEN to do background checks. Which means the HOA pays for the background checks.

Simply do not vote for this person next election. It's your vote. Don't vote for them or run for office yourself.

Former HOA President
JoeM19
(Florida)

Posts:4


10/11/2019 5:35 AM  
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.
SteveM9
(Massachusetts)

Posts:3362


10/11/2019 6:25 AM  
I'm sure you have plenty of owners who could run for board besides her.

Sounds like she has no life and dedicates everything to the HOA....... unpaid.

Wish I had more people in my HOA like that.
MelissaP1
(Alabama)

Posts:8601


10/11/2019 2:38 PM  
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.

Former HOA President
PaulJ6
(New York)

Posts:319


10/12/2019 3:52 AM  
In addition to possibly violating legal restriction on use of background check info, the president is using HOA resources for personal advantage. That's not right. ALL HOA resources should be used by the president, and other directors/officers, for the best interests of the HOA and its members. Not for their personal advantage. That's a breach of fiduciary duty.

None of this likely rises to the level of being illegal enough to actually have action taken, but it's just bad form at a minimum.
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