Page 8 - New Jersey Cooperator February 2019

V olunteerism is arguably the bed- rock of co-op and condominium communities. One buys into one or the other with the expectation of par- ticipating in the governance and operation of the property. Volunteering for board or committee service, though, is often a mat- ter of time – something many of us don’t have much of these days, especially the ‘extra’ kind. As a result in many communi- ties, it’s the older and often retired residents who have the hours to offer for board and committee service. The result is that often boards are dominated by older, longer- term residents, which in itself isn’t neces- sarily a bad thing – it’s just a fact. It should also be noted that the com- position of a board is usually represen- tative of the residents of the building or association, and different types of com- munities tend to draw different demo- graphics. So in a smaller community, perhaps a 10-unit co-op in a walk-up building with only studio apartments in a newly-fashionable neighborhood, every- one living there may be under 40 – thus, that board will likely be composed of younger people. Conversely, in an over- 55 community, the board will mostly be composed of older people. But these spe- cific situations may not be typical of most communities. Legislative Fix? Can a co-op corporation or condo- minium association do something spe- cific with its bylaws or rules to require that board seats be distributed between various age groups? “Absolutely not,” says Mark Hakim, a co-op and condo attorney with Schwartz Sladkus Reich Greenberg Atlas, LLP, a law firm located in New York City. “You cannot create age limita- tions of any kind relative to the board. It’s illegal. And that’s under both federal and state laws and statutes.” Frank A. Lombardi, a partner at Good- man, Shapiro & Lombardi, a law firm with offices in Massachusetts and Rhode Island, concurs. “Age requirements are illegal,” he says. “Don’t get within a half mile of them.” Doing so is asking for a potential lawsuit, because age is a pro- tected class under discrimination law. Sima L. Kirsch, a community law at- torney located in Chicago, takes a slightly different view of the possibility of intro- ducing age as a factor in board composi- tion. “With the changing demographics of our citizenry,” Kirsch says, “diversity in leadership enables a greater under- standing and ability to plan for an as- sociation’s current and rapidly changing future needs. Staggering a board by age, although a unique take on the situation, may allow much needed collective per- spective. Whether to implement such a rule needs to be made on a case-by-case basis based on the operating documents and composition of the association mem- bers and needs. “Is this rule discriminatory?” Kirsch continues. “Will it survive court scruti- ny? It may very well. The association is a private corporation, and the purpose of the rule is not age-based or based on any other type of housing restriction, or discrimination category. Rather, it is con- nected to a purpose of the condominium, which is to protect the equity and health and safety of the members it serves for now and in the future. An amendment is the most secure method to adopt such a change. There are no cases on point as yet, so we can only wait and see.” Encouraging Diversity Hakim suggests there are steps that can be taken to encourage diversity in all directions. “A corporation or association could amend its bylaws to require a cer- tain level of attendance at meetings,” he says. “Failure to attend would be deemed an automatic resignation. A younger res- ident with a business lifestyle may elect not to obligate him or herself, or resign. The converse might be to amend how meetings are held, allowing use of Skype, or teleconferencing via smartphone. That might encourage those who are more technologically savvy but not physically available. You have both sides of the coin. One side pushes to those with more time, the other by adding different means of at- tendance. That opens doors to younger, more time-strapped people.” Another avenue to more diversity, sug- gests Hakim, is the use of term limits and staggered seats. “Term limits are a great idea to force new blood onto a board. Complacency is still a problem, though. You don’t want vacant seats, which could result if no new potential members step forward.” Scott Piekarsky, an attorney and man- aging member at the Wyckoff-based firm Piekarsky & Associates, concurs. “Some communities are turning to term limits to promote diversity and get more board turnover,” he says. “Older, long-serving board members tend to want to stay on forever.” “The best-run associations,” says Lombardi, “are those that are dedicated to increasing the value of the property.” He doesn’t see any correlation between that goal and the relative age of board members. “Every person approaches the job of being a board member with their own needs, ideas and wishes. It’s a matter of dedication, not age.” At Loggerheads In many communities, a lopsided age balance on the board can lead to confron- tation. “In diverse communities – partic- ularly the newer ones – I’ve seen the dif- ferences of opinion that can result from age differences on a board,” says Piekar- sky. “If they don’t have full facilities, like a playground or a basketball court for the kids, there can be vocal, growing families who want these amenities, but the older residents don’t want it – and the tug of war begins.” He cites one community in which the older empty nesters began moving out because the younger ten- ants became so vocal, and the resulting changes made them uncomfortable in the community. Interestingly, Piekarsky notes, this age friction doesn’t limit itself to multi-gen- erational communities. He says that in Board Demographics Old Guard Versus New Blood BY A J SIDRANSKY BOARD RELATIONSHIPS 8 THE NEW JERSEY COOPERATOR —FEBRUARY 2019 NJCOOPERATOR.COM ISTOCKPHOTO.COM continued on page 20