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ArtL1 (Florida)
Posts: 140
Posted:
I'm curious how other FL HOAs (FS 720) have dealt with implementing electronic voting if their bylaws are old enough that electronic voting wasn't even a thing at the time they were written? i.e. My HOA's bylaws are a little confusing when it comes to votes at meetings of the members:

Under Meetings of the Members:

"Proxies. At all meetings of members, each member may vote in person or by limited proxy. All proxies shall be in writing and filed with the secretary. To be valid, a proxy 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. Every proxy shall be effective only for the specific meeting for which it was originally given. A proxy is revocable at any time at the pleasure of the homeowner who executes it. Limited proxies may also be used for votes taken to amend the Articles or Bylaws or for any matter that requires or permits a votes of the homeowners."

For election of the Board,

"Section 2. Election. Election to the Board of Directors shall be by secret written ballot. At such election the members or their proxies may cast, in respect to each vacancy, as many votes as they are entitled to exercise under the provisions of the Declaration. The persons receiving the largest number of votes shall be elected. Cumulative voting is not permitted.

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."

So...under meetings of the members, we can vote in person or by limited proxy.
But then for election of the Board, we can vote by secret written ballot (later specified "in person at a meeting of the homeowners"), and this is doubly confusing, because Section 3, titled "Use of Proxy" actually doesn't say anything about proxies, but Section 2 does say that members or their proxies may cast ballots.

It gets worse...I swear our governing documents were cut and pasted together by a poorly trained monkey.

Given the mess above, I'm curious what it would take to use electronic voting (since that's the easiest way to get the level of participation needed to amend our governing documents and fix some of the even more screwed up parts)?

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."

Can the board just pass such a resolution (following the other requirements laid out in 720.317(4), and use electronic voting, or does the language above limit us to using electronic voting by having the e-voting system generate limited proxies?

One of the things the previous board demonstrated on many occasions is, the board can do whatever it wants, as long as its a statute violation the state doesn't enforce and as long as none of the members are willing to take the HOA to court over it. I'd rather do things properly, than just whatever we can get away with.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
My personal opinion is a BOD could pass a rule to become up to date with laws, especially if they are not taking away anything. In your case, you are just adding another (newly legal) way to vote..
GwenG (Florida)
Posts: 669
Posted:
The FS 720 law is procedural and applies to all HOA's. It expands governing documents, it does not conflict or constrict with member rights. Electronic voting is consistent with all Florida governing agencies which have mandated electronic filing and eliminated paper-based process. It simply requires two things: 1. Board must adopt a resolution for electronic voting and 2. Owners' must give individual written consent. The statute clearly and thoroughly describes the protections that must be present in an electronic ballot process. There are web providers that are quite experienced and can guide associations in set up.

In snowbird associations, where many/most people live elsewhere as the primary home and visit the winter "FL cottage" periodically, electronic balloting could save a lot of administrative expenses on elections, adopting changes to documents and straw canvassing issues throughout the entire year.

In my HOA, there is reduced confidence in the voting system which has been violated publicly and repeatedly by board directors. Despite that, board refuses to even "look into" electronic balloting which, at the very least, could improve the optics of management involvement in voting. The reasons why there is such resistance is open to speculation. One of those speculations is that the onerous paperwork process serves to validate the continued contract with MC and MC objects and recommends board maintain the known status quo. Another is that it would remove opportunity to manipulate voting away from the board and management company. The last major speculation is that there is a general resistance to change and fear that electronic balloting would add another burden to the paper process and increase cost and complexity.
ArtL1 (Florida)
Posts: 140
Posted:
Quote:
Posted By GwenG on 11/19/2017 11:11 AM
The FS 720 law is procedural and applies to all HOA's. It expands governing documents, it does not conflict or constrict with member rights. Electronic voting is consistent with all Florida governing agencies which have mandated electronic filing and eliminated paper-based process. It simply requires two things: 1. Board must adopt a resolution for electronic voting and 2. Owners' must give individual written consent. The statute clearly and thoroughly describes the protections that must be present in an electronic ballot process. There are web providers that are quite experienced and can guide associations in set up.


Good point on the procedural thing. I mentioned in the other thread where this eventually came up, that from a previous disputed AM&E, I'd already done research on the issue of "Kaufman language", which our docs lack, and which our HOA attorney has pointed out previously. Unfortunately, I don't think she understands the significance of the Kaufman case, as she's told "us" (the previous board) on numerous occasions that the current version of FS 720 doesn't apply to our HOA...that we have to use the decade plus old version of FS 720 that existed at the time our docs were filed.

One other issue that's been raised is our docs allow for nominations from the floor at the annual meeting. Electronic voting, since the system would be unaware of any floor nominations, would exclude such candidates from receiving votes from those who e-vote. IMO, that's a non-issue, as the same issue applies to votes by limited proxies collected in advance of the annual meeting (and our docs allow those).
GwenG (Florida)
Posts: 669
Posted:
Our governing docs do not have Kaufman language. My attorney commented on this and explained that Kaufman language only applies in situations involving "material and substantive" versus "procedural/remedial" changes. He explained that a procedural/remedial change is in the public interest domain and Kaufman does not limit changes that cure, remediate, clarify or add to procedural public enactments.

Adding another avenue to process an established member right ie. digital in addition to paper or in-person or proxy, does not dilute a vested material or substantive right.

An example of why the question came up was that Florida legislature gave HOA's the right to fine members for violations regardless of whether the authority to fine was present in the Covenants. My HOA has no covenanted authority to levy fines. My HOA wanted to adopt the FS720 "right" and begin a fining process. My HOA was incorporated under FS617 and because it has no Kaufman language--and because the right to fine members is a MATERIAL and SUBSTANTIVE change in the contract--it cannot implement the newly-legislated fining procedure.

If, on the other hand, it had Kaufman language, it could adopt a fining scheme against members because it would have already agreed to be burdened by all future legislative amendments.

I agree that there is no difference in the e-vote and limited proxy vote. On the other hand, if members agree to e-vote, it is more likely that they are more conversant with email and other social media to better mount a rapid, inexpensive digital "write-in" campaign thereby rendering floor nominations obsolete. It might even encourage members to sign onto e-voting.
GenoS (Florida)
Posts: 4,276
Posted:
Quote:
Posted By GwenG on 11/19/2017 1:10 PM
Our governing docs do not have Kaufman language. My attorney commented on this and explained that Kaufman language only applies in situations involving "material and substantive" versus "procedural/remedial" changes. He explained that a procedural/remedial change is in the public interest domain and Kaufman does not limit changes that cure, remediate, clarify or add to procedural public enactments.

...

An example of why the question came up was that Florida legislature gave HOA's the right to fine members for violations regardless of whether the authority to fine was present in the Covenants. My HOA has no covenanted authority to levy fines. My HOA wanted to adopt the FS720 "right" and begin a fining process. My HOA was incorporated under FS617 and because it has no Kaufman language--and because the right to fine members is a MATERIAL and SUBSTANTIVE change in the contract--it cannot implement the newly-legislated fining procedure.

We are in the same boat. Electronic voting expands the ways in which parcel owners may exercise their right to vote on HOA matters and encourages participation in the voting process.

No only do we not have Kaufman language in our governing docs, our docs pre-date the passage of FS 720. The original versions of our documents were recorded in 1989. So we can't fine either until we amend our docs. Likewise, boards over the years have steadfastly refused to follow FS 720 when it comes to reserves. Mainly because the implications were such that assessments would have to go up and they wanted to prevent that at all costs.

It gets complicated because some parts of FS 720 are applicable regardless of when our documents were written and regardless of Kaufman language.
ArtL1 (Florida)
Posts: 140
Posted:
Quote:
Posted By GenoS on 11/19/2017 4:26 PM

We are in the same boat. Electronic voting expands the ways in which parcel owners may exercise their right to vote on HOA matters and encourages participation in the voting process.

No only do we not have Kaufman language in our governing docs, our docs pre-date the passage of FS 720. The original versions of our documents were recorded in 1989. So we can't fine either until we amend our docs. Likewise, boards over the years have steadfastly refused to follow FS 720 when it comes to reserves. Mainly because the implications were such that assessments would have to go up and they wanted to prevent that at all costs.

It gets complicated because some parts of FS 720 are applicable regardless of when our documents were written and regardless of Kaufman language.

So, did your HOA adopt electronic voting, or you're still trying to figure out if/how you can?
GenoS (Florida)
Posts: 4,276
Posted:
Quote:
Posted By ArtL1 on 11/19/2017 6:19 PM
So, did your HOA adopt electronic voting, or you're still trying to figure out if/how you can?

We haven't even considered it yet, to be honest. Since turnover in 1994 we've never fallen short of a quorum at our member meetings. It would certainly help for off-season votes on amendments and such, when 1/3 of the homeowners aren't here, but the HOA avoids special meetings like the plague unless it's an emergency.

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