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HOA Disclosing Proxy Votes By Address

Started by ReaperL • 22 replies • 3652 views

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ReaperL (Florida)
Posts: 1
Posted:
Is it Legal for an HOA in Florida to post by address, listing the questions from the proxy showing if you voted No or Yes on a specific issue? Currently my HOA has been trying to amend some bylaws and one of the bylaws did not pass due to "no" votes or Nonresponse to the proxy. Now they sent a letter saying Dues are going up because an amendment did not pass and there listing by address who voted “yes”or “no” on the proxy. I feel even if this is legal, going forward it will be very hard to get responses on future votes if they’re going to single everyone out and post their votes online. Any feedback is appreciated.
DagmarB (Georgia)
Posts: 21
Posted:
We do not disclose any names, adresses, but we let the assoc attorney ratify our vote by percentage and all documents are retained by th Board, which includes all proxy's.
You will never get all the owners to vote, they are just not interested or do not understand how important their vote is. I have e-mailed a responsibilty printout of Board duties and owner duties, which is available on line to all owners. When we vote I send reminders about 2 days prior to the closing of the vote.
LawrenceC1 (Georgia)
Posts: 480
Posted:
Reaper,

Secret ballots are not guaranteed except by state law or your bylaws. You should check both places to see what they say about voting. In our case, votes for electing the board of directors are secret, but other votes, for instance motions at the annual meeting or a referendum for amending the covenants, are not secret and can be published to the membership.
SusanW1 (Michigan)
Posts: 5,202
Posted:
Lawrence - please print the state law that says each Member's votes is open to public view.

Voice voting is obvious, but a ballot vote is anonymous. You don't put the name on it anyway.

Why would proxy votes be revealed to anyone other than the one person or teller handling the vote/

LawrenceC1 (Georgia)
Posts: 480
Posted:
Quote:
Posted By SusanW1 on 03/06/2011 12:41 PM
please print the state law that says each Member's votes is open to public view.

Susan,

You have it backwards. Nothing is secret unless there is a state law or provision in your bylaws that say it is secret. You would need to find a state law or a bylaw that says a vote is secret to keep it secret.

In Georgia, the records of non-profit corporations including minutes of all meeting must be made available to the members (O.C.G.A. 14-3-1602). All votes at meetings, or votes by ballots without a meeting, are part of the corporate records.

If your state or your bylaws mandates a secret ballot for the election of the board of directors, that provision is narrowly focused on those elections. The provision does not extend further to keep votes on other matters secret.
SusanW1 (Michigan)
Posts: 5,202
Posted:
Of course, the RESULTS of the vote must be posted.

But you are saying that EACH homeowner's vote is to be revealed.(How the voter voted)

I say that is not true.

Only the talley of the vote is to be revealed.

LawrenceC1 (Georgia)
Posts: 480
Posted:
We recently collected votes for an amendment to our Covenants that required 2/3 of the homeowners to vote for approval. Each homeowner had to submit a signed form that was recorded by the Secretary and maintained in the corporate records. We received specific legal advice that the voting forms had to be made available for inspection by any member requesting to see the vote.

This would be true for any referendum.

PamelaM5 (Florida)
Posts: 85
Posted:
We have the members sign something on the envelope to prove that they voted, then separate the envelopes and the ballots so that the person/people counting the votes aren't aware of which envelope goes with which ballot and who voted which way.
LawrenceC1 (Georgia)
Posts: 480
Posted:
Quote:
Posted By PamelaM5 on 03/06/2011 5:22 PM
We have the members sign something on the envelope to prove that they voted, then separate the envelopes and the ballots so that the person/people counting the votes aren't aware of which envelope goes with which ballot and who voted which way.

Pamela,

That is a good system when a secret ballot is required by your governing documents (bylaws, covenants, and state laws). What about the votes that are not required to be secret? Such a procedure could be construed as an illegal attempt to conceal information from members that they are entitled to know.
SusanW1 (Michigan)
Posts: 5,202
Posted:
Lawrence!!!

A member's vote is confidential and anonymous!! You cannot reveal HOW and individual voted.

You can only reveal the result of the total election or the vote count resulting from a motion.

Why do you insist that a Member's vote be made public?

Print the law that says that!
LindaS12 (Florida)
Posts: 13
Posted:
If you give a proxy to someone in our HOA, you must fill out a form in addition to your proxy. The proxy holder's name is also listed. It contains both owners names, address, signatures. Both owners have to sign even if they are husband and wife and of course only one vote per property is allowed. Anyone looking at the proxies can see who voted on that person's behalf.
PamelaM5 (Florida)
Posts: 85
Posted:
Quote:
Posted By LawrenceC1 on 03/07/2011 2:45 PM
Posted By PamelaM5 on 03/06/2011 5:22 PM
We have the members sign something on the envelope to prove that they voted, then separate the envelopes and the ballots so that the person/people counting the votes aren't aware of which envelope goes with which ballot and who voted which way.


Pamela,

That is a good system when a secret ballot is required by your governing documents (bylaws, covenants, and state laws). What about the votes that are not required to be secret? Such a procedure could be construed as an illegal attempt to conceal information from members that they are entitled to know.

I've never seen the members vote on anything but candidates for the board and an amendment here and there, about once every five years. What else would they be voting on?

The BOD, of course, votes in public on board issues but for the above sorts of votes we have the same right to a secret ballot that the members do.

I'm not sure what you're asking me.
LawrenceC1 (Georgia)
Posts: 480
Posted:
Quote:
Posted By SusanW1 on 03/07/2011 3:36 PM

A member's vote is confidential and anonymous!! You cannot reveal HOW and individual voted.

You can only reveal the result of the total election or the vote count resulting from a motion.

Why do you insist that a Member's vote be made public?

Print the law that says that!

Susan,

In Georgia the law is O.C.G.A § 14-3-1602(b) that starts out, "A member is entitled to inspect and copy, at a reasonable time and location specified by the corporation, any of the records of the corporation..."

As I posted previously, we received specific legal advice that the original signed forms submitted to ratify an amendment to our Covenants, showing who voted and how they voted, must be maintained as part of our corporate records, and must be made available for any member to see. (Note that this is not public disclosure but disclosure to members of the association.)

So if someone in your HOA planned to make available the votes on a motion or referendum, what law would you cite that would stop the HOA from doing so? A thing is not secret just because you think it ought to be secret. There has to be a specific statute, precedent, or bylaw that makes it secret.
LawrenceC1 (Georgia)
Posts: 480
Posted:
Quote:
Posted By PamelaM5 on 03/07/2011 4:12 PM

The BOD, of course, votes in public on board issues but for the above sorts of votes we have the same right to a secret ballot that the members do.

I'm not sure what you're asking me.

Pamela,

Are you sure that the board has the right to a secret vote? In our situation, votes of the board must be public and the votes of each board member must be recorded in the minutes. Even for issues deliberated in executive session, any vote coming as a result of the executive session must be made in open forum.

Your bylaws or state statutes may give you the right to secret votes, but do not assume that you have that right.
PamelaM5 (Florida)
Posts: 85
Posted:
Are you asking about member votes or director votes? Member votes are secret but director votes, when they're acting in their official capacity. are not. We had an election last month and my vote, as a member, was secret, even though I'm a director. I wasn't acting in my official capacity when I voted for someone who was running for the board.
LawrenceC1 (Georgia)
Posts: 480
Posted:
Quote:
Posted By PamelaM5 on 03/07/2011 5:43 PM
Are you asking about member votes or director votes? Member votes are secret but director votes, when they're acting in their official capacity. are not. We had an election last month and my vote, as a member, was secret, even though I'm a director. I wasn't acting in my official capacity when I voted for someone who was running for the board.

That's the way we must treat votes of the Board in my association, too. No secrets.

Now, what provision in your bylaws or state law says that member votes are secret? Does the provision have any limitations?
SusanW1 (Michigan)
Posts: 5,202
Posted:
Lawrence, do you follow ANY parlimentarian procedures?

The backbone of Roberts Rules is the private, confidential vote of the Membership. (NOTE: Membership voting is NOT the same as what happens at a board meeting)

MEMBERSHIP Voting done by voice, rising or by hand are, by virtue of how they are done, very public. Still, an individual's vote cannot be noted.

Anytime you have a ballot vote, that ballot is confidential. No law can be made that would force the disclosure of a member's vote - or even force a person to reveal their views on the issue.

A Proxy form should not be the ballot. The proxy form could be the envelope or wrapper around the ballot, but in any case, the individual's vote is NOT open for public display. If a proxy is given to allow another person to vote the way he/she feels, THAT vote cannot be revealed. The secretary can note that a proxy vote was issued for John Smith's vote, but she/he cannot reveal what John Smith's vote was.

You are heading for a lawsuit if you publish/reveal member's private voting habits.

LawrenceC1 (Georgia)
Posts: 480
Posted:
Susan,

You may be misunderstanding Roberts Rules. Those rules allow for many kinds of votes; i.e. rising, show of hands, acclamation, secret ballot, roll call vote, etc. The rules do not mandate any kind of vote, nor is confidential voting a “backbone” of the rules. Roberts Rules are always subject to the governing documents for your association (bylaws and state laws). If your governing documents say something is secret, then it is secret. If they say something must be available for inspection by the membership, then it must be made available for inspection by the members.

In the case of our association, the Bylaws say that Roberts Rules should be used at meetings, unless the presiding officer chooses otherwise. For us, any provision of Roberts Rules is then moot. Roberts Rules do not automatically apply to homeowners’ association meetings.

You may have a guarantee of a secret ballot, but it is not something that you can assume. It has to be written into your state law or your bylaws. Publishing member’s votes would only bring a lawsuit if it violated some law. Just what law would be violated by making votes of the membership available to other members?
JanetB2 (Colorado)
Posts: 4,219
Posted:
Florida HOA statute on this issue:

 720.306Meetings of members; voting and election procedures; amendments.—

 (b)If the governing documents permit voting by secret ballot by members who are not in attendance at a meeting of the members for the election of directors, such ballots must be placed in an inner envelope with no identifying markings and mailed or delivered to the association in an outer envelope bearing identifying information reflecting the name of the member, the lot or parcel for which the vote is being cast, and the signature of the lot or parcel owner casting that ballot. If the eligibility of the member to vote is confirmed and no other ballot has been submitted for that lot or parcel, the inner envelope shall be removed from the outer envelope bearing the identification information, placed with the ballots which were personally cast, and opened when the ballots are counted. If more than one ballot is submitted for a lot or parcel, the ballots for that lot or parcel shall be disqualified. Any vote by ballot received after the closing of the balloting may not be considered.

LawrenceC1 (Georgia)
Posts: 480
Posted:
Quote:
Posted By JanetB2 on 03/08/2011 9:12 AM
Florida HOA statute on this issue:

 720.306Meetings of members; voting and election procedures; amendments.—

 (b)If the governing documents permit voting by secret ballot...

So the laws of Florida support the idea that secret votes are allowed only if the governing documents say that secret voting is permitted. This is what I have been saying all along. I think this is probably true of most state statutes.

SusanW1 (Michigan)
Posts: 5,202
Posted:
So, Lawrence, you are saying that you can open up ANY Member's written ballot and announce the vote and who cast that vote?

Incredible.

LawrenceC1 (Georgia)
Posts: 480
Posted:
Susan,

It's not what I say -- it's what your governing documents say.

Unless there is a stipulation in your bylaws that some votes are secret it is a mistake to assume that voting is secret.

In many cases, an HOA's governing documents require that ballots be open for inspection by the members, as part of open meetings laws.
RobW (California)
Posts: 279
Posted:
I have to support what Lawrence has been saying here. Voting by secret ballot is not a fundamental right in a common interest development - it must be spelled out either in statute or governing documents under what circumstances it is permitted or required, with state statute generally trumping governing documents.

For example, in California, secret ballots are required under California Civil Code §1363.03(b) for the following types of voting in an HOA:


  • special assessments over 5% (see exceptions) or regular assessments over 20%

  • election and removal of directors

  • amendments to the governing documents (see exception)

  • grant of exclusive use of common area property (see exceptions)



Someone asked what other sorts of things homeowners would vote for, and just to give you some examples off the top of my head:


  • span >selling land or other assets

  • span >demolishing or otherwise liquidating a major component, such as a fountain

  • capital improvements

  • alterations in the design of the common area



Just to name a few.

Rob

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