Florida HOA BoD election and proxies

You could put the names on the ballot and tell the homeowner to select whoever he/she wants – you should probably include a space where he/she could write in another choice if desired.However, your bigger problem is getting people to participate and unless that changes, it won’t matter what you write on the proxy/ballot if no one turns it in or shows up at the meeting when the election is held.

If you and other homeowners are “getting tired of this board”, you need to run for a position, meaning you'll have to get out and walk the community, introducing yourself and telling people you’re running for the board and why. Encourage them to participate, either by sending in the ballot or by showing up at the meeting. Remind them again as the meeting date gets closer.

Tell your board you’re running for a spot and suggest some sort of meet the candidates meeting before the meeting so you can make your case in person. Or, your website or newsletter (preferably both) could list the candidates who would introduce themselves and explain what they’d bring to the board if elected.

Next, offer to work with the board on the instructions it sends to homeowners to make sure they understand what the proxy is for and how to fill it out so it’ll do whatever the homeowner wants it to do. For example in our association, the homeowner can make the selection and authorize the board president to vote for those people on his/her behalf or appoint someone to attend the meeting and do it. The homeowner should be looking at the proxy to ensure it will do what he/she wants. My association lists the instructions in the letter accompanying the proxy, reminding people they can always choose to show up and cast their vote in person, thus cancelling the proxy.

If your bylaws say it, you’ll also want to remind people that only those in good standing with paying assessessments can vote and/or run for the board. If it’s one vote per home, those with multiple owners will have to decide among themselves who will complete and sign the proxy, or if they show up, only one can cast a vote. Good luck!

What I meant in 2. is that the limited proxies count both toward making quorum and assuming the proxy holder is a voting member of the HOA, the proxy holder would vote their own ballot and one additional ballot for each proxy. So, 50 proxies would result in 51 ballots being cast by one person (following the voting instructions of the 50 proxies).

I kind of wonder if the "or by a ballot that the homeowner personally casts" was meant to cover voting by mail? But AFAIK, the Bylaws would have to explicitly permit that, and ours don't (only in person or by limited proxy). Proxies have been sent out in the past (both for the turnover meeting and subsequent AM&E's) with instructions that they be placed in a "proxy envelope" inside the return envelope in accordance with 720.306(8)(b). This, I assume, is another case of the management company and/or Board getting it wrong and confusing proxies with mail-in ballots.

I'd already found the DBPR's sample proxy, and used that as a guide for drafting my own, basically adding to the "mid section"

I SPECIFICALLY AUTHORIZE AND INSTRUCT MY PROXYHOLDER TO CAST MY VOTE IN REFERENCE TO THE FOLLOWING MATTERS AS INDICATED BELOW:

Nomination and Election of Board of Directors for :

__ ____________ __ ____________ __ ____________

__ ____________ __ ____________ __ ____________

My plan is to have 3 candidate names printed on the proxy, and leave 3 blanks so that if someone wants to write in other names, they can.

Amending the bylaws and restrictions is my main motivation for running for the Board. To say our documents were hacked together by an idiot would be generous. Unless the Board wants this done (does several mailings of proxies/reminders asking the members to vote), I don't think it'll ever get done.

Section 3. Use of Proxy. For election of members of the Board of Directors, members of the Association shall vote in person at a meeting of the homeowners or by a ballot that the homeowner personally casts."

If this above is correct ... Potentially proxy cannot be used for electing the Board of Directors. Above states all homeowners must personally cast the ballot either in person or potentially via mail, if your docs allow.

Hahaha, it sounds like the same people that hacked together your documents also did ours.

It's true that many, many people confuse proxies with mail-in ballots. It's common to have a "mixed" proxy form, i.e. both general and limited. In the "general" section, a checkbox is sometimes provided to indicate the proxy may be used to count towards a quorum. Condo associations use mixed/hybrid general/limited proxies a lot in Florida because FS 718 says general proxies cannot be used for elections of directors. There is no corresponding restriction in FS 720 for HOAs.

THIS BLOG ENTRY is short but very informative. It opines that if an HOA wants to adopt the "standard" condo election procedures then they must be authorized in the governing documents.

It shouldn't be complicated... but it is. My biggest worry was getting homeowners to understand the difference between ballots, proxies and absentee ballots (for the purpose of amending our Bylaws). I never got that far since it was not possible to even get the board of directors to understand the differences.

How many homes are in your HOA? I think it's easier in small-ish associations to drum up suppoort for things than it is in very large ones.

In almost every HOA dispute in Florida the route is going through mandatory mediation and then, if there's no resolution, to court. THE ONE EXCEPTION is election disputes which are arbitrated through the DBPR. It still costs money but it's nowhere near as expensive as pursuing a lawsuit. A good resource is this DBPR arbitration search page. If you click on the "Online Search for General Orders" and type in "proxies", for instance, you'll be able to access a plethora of past DBPR election dispute arbitration cases. Most of the decisions are less than 10 pages long and relatively easy to understand. I have found some really interesting things there over the past couple of years.

I had read that one a few months ago. In essence it's OK to entice people to send in their proxies in return for a chance to win prizes in a (possibly illegal) lottery.

I think you're on the right track and the arbitration rulings are pretty consistent where dodgy elections and questionable board decisions regarding proxies are concerned. Where HOAs are concerned the arbitrators stick pretty close to whatever the association's governing documents say. Or don't say.

Art ... Which section of the Florida State Statutes does your HOA fall under?

I'm with Geno ... in future you may want to amend and eliminate Section 3. However, if you are going to replace the BOD you might want to try and follow at this time to avoid it being used against you. If you are going to go around and obtain proxies can you not also go around with ballots and envelopes and complete them following the docs and state laws? Also, get proxies to insure a quorum for the meeting. These are the sections of 720 I was looking at:

720.306 Meetings of members; voting and election procedures; amendments.—
(1) QUORUM; AMENDMENTS.—
(a) Unless a lower number is provided in the bylaws, the percentage of voting interests required to constitute a quorum at a meeting of the members shall be 30 percent of the total voting interests. Unless otherwise provided in this chapter or in the articles of incorporation or bylaws, decisions that require a vote of the members must be made by the concurrence of at least a majority of the voting interests present, in person or by proxy, at a meeting at which a quorum has been attained. A meeting of the members must be held at a location that is accessible to a physically handicapped person if requested by a physically handicapped person who has a right to attend the meeting.
(b) Unless otherwise provided in the governing documents or required by law, and other than those matters set forth in paragraph (c), any governing document of an association may be amended by the affirmative vote of two-thirds of the voting interests of the association. Within 30 days after recording an amendment to the governing documents, the association shall provide copies of the amendment to the members. However, if a copy of the proposed amendment is provided to the members before they vote on the amendment and the proposed amendment is not changed before the vote, the association, in lieu of providing a copy of the amendment, may provide notice to the members that the amendment was adopted, identifying the official book and page number or instrument number of the recorded amendment and that a copy of the amendment is available at no charge to the member upon written request to the association. The copies and notice described in this paragraph may be provided electronically to those owners who previously consented to receive notice electronically. The failure to timely provide notice of the recording of the amendment does not affect the validity or enforceability of the amendment.

(3) SPECIAL MEETINGS.—Special meetings must be held when called by the board of directors or, unless a different percentage is stated in the governing documents, by at least 10 percent of the total voting interests of the association. Business conducted at a special meeting is limited to the purposes described in the notice of the meeting.

(8) PROXY VOTING.—The members have the right, unless otherwise provided in this subsection or in the governing documents, to vote in person or by proxy.
(a) To be valid, a proxy must be dated, must state the date, time, and place of the meeting for which it was given, and must be signed by the authorized person who executed the proxy. A proxy is effective only for the specific meeting for which it was originally given, as the meeting may lawfully be adjourned and reconvened from time to time, and automatically expires 90 days after the date of the meeting for which it was originally given. A proxy is revocable at any time at the pleasure of the person who executes it. If the proxy form expressly so provides, any proxy holder may appoint, in writing, a substitute to act in his or her place.
(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.

(9) ELECTIONS AND BOARD VACANCIES.—
(a) Elections of directors must be conducted in accordance with the procedures set forth in the governing documents of the association. Except as provided in paragraph (b), all members of the association are eligible to serve on the board of directors, and a member may nominate himself or herself as a candidate for the board at a meeting where the election is to be held; provided, however, that if the election process allows candidates to be nominated in advance of the meeting, the association is not required to allow nominations at the meeting. An election is not required unless more candidates are nominated than vacancies exist. Except as otherwise provided in the governing documents, boards of directors must be elected by a plurality of the votes cast by eligible voters. Any challenge to the election process must be commenced within 60 days after the election results are announced.

At least the BOD election is the majority of votes as long as you meet the quorum . You just need to be sure to have enough to exceed those who might participate and calculate extra. Personally I like a larger percentage to amend documents. If everyone liked what they bought into then it should take a large majority to change. I feel it also curtails the sometimes rogue boards by making it difficult to amend.

Excellent news, Art! Thanks for the update. Chalk up another success story under the "it takes work but it can be done" category. That's really great news.

I also thought that electronic voting required authorization in the Bylaws but looking at FS 720 it seems as though that's not true. FS 720.317(4) says, "This section applies to an association that provides for and authorizes an online voting system pursuant to this section by a board resolution." There's more to it but apparently a board resolution is enough, no Bylaws amendment required. Isn't it great to have attorneys who are so on the ball?

At first I was sure that e-voting for community associations was a bad idea, but the services being offered are not cost prohibitive and seem to provide adequate security so my thinking has evolved. I think for your association, where getting a quorum together is a challenge, e-voting is ideal. I agree that a procedural change to the voting method used isn't something that requires Kauffman language in your documents (I'm not an attorney, though).

My HOA's Bylaws say almost the same thing re. voting in person or by proxy (ours doesn't specify 'limited'). There's an informative article online HERE that used to be on Becker & Poliakoff's website. Unfortunately they completely re-designed their site and a ton of useful blog posts and articles have gone missing. That link shows an archived version that suggests absentee mail-in balloting has to be authorized in the bylaws. That's something I want to get into my HOA's bylaws as well since my HOA has been using absentee mail-in ballots for years, apparently in contradiction of our Bylaws which say "in person or by proxy" only.

In Florida condos, general proxies may not be used for board elections. That's also something I'd like to change in my HOA's documents, perhaps you might consider that also. Proxies are relatively easy to game and abuse. With electronic voting and/or anonymous mail-in balloting there's really no need for them.

Thanks again for the update. Please keep us posted about your progress. Florida HOA living as a whole improves every time someone like yourself steps up for positive change.

Awesome ... Thank You for the update. You already have practice on how to get your needed votes ... so I think you have very high probability of any and all future success!!!