State Laws and Governing Documents Provide Guidance
Whether you must or can have a nominating committee will depend on your state law and governing documents. “In Minnesota, we don’t see a lot of governing documents that call for the creation of a nominating committee, but they do exist,” says Drewes. “No action has been taken by the legislature to say that nominating committees are invalid, nor does any legislation require they be used. It’s generally going to be up to the governing documents.”
Florida has separate rules for condo and homeowners associations. “For condos, nominating committees are no longer permitted,” says Dennis J. Eisinger, a partner at Eisinger, Brown, Lewis & Frankel PA in Hollywood, Fla., who currently represents more than 500 condo and HOA associations. “It’s a self nomination process. For HOAs, you can still have them, but you can’t preclude nominations from the floor.”
Even though nominating committees are permitted in Florida HOAs, they’re rarely employed. “I’ve never heard of nominating committees before,” says Robert White, managing director of KW Property Management & Consulting in Miami, which oversees about 135 Florida associations totaling 30,000-35,000 units. “Typically the way it works in Florida is that we send a mailing to the entire community telling them the board’s coming up for election. If they want to run, they need to provide a resume and other materials we can send out to the members so they can vote accordingly.”
California’s Davis-Stirling Act, which governs community associations, has eliminated the role of nominating committees by allowing candidates who qualify for board membership to thrown their hat into the ring without the consent of any committee.
Dos and Don’ts of Nominating Committees
If you’re permitted to create a nominating committee and interested in doing so, start by determining who’ll be on it. “Generally, they can be comprised of board members and nonboard members,” says Drewes. “Just as a practical matter, not because of anything in the law, you may want to ensure that anybody on it isn’t in a board seat that’s up for vote or renewal or is running for the board. If an association has a good manager or management company, they’ll be a real good resource for assisting and advising in the formation of a committee and complying with provisions of the governing documents. An attorney could do so as well.
“If they’re operating properly,” adds Drewes, “the committee’s members should take the job seriously and have some objective process to review the qualifications, interest level, and skill set each candidate brings, and maybe even their policy considerations. The point is to do your best to make sure you’re holding out the most qualified or best potential fits for the opening or openings you have. It’s important for the credibility of the committee and the board itself that that be done in a responsible way.”
But even if you’re permitted to use them, Eisinger suggests thinking carefully first. “Nominating committees are relatively passé, and I think that’s a good thing,” he says. “In my experience, they only perpetuate the status quo, and that’s not necessarily good. Sometimes you don’t get that new blood because the board can be the nominating committee and its members nominate themselves, or the board will pick people who will nominate them.”