Florida Recall Ballots Valid if emailed in?

That's a legal question you may need to run by a private attorney. Your documents were probably written at a time when there was no email, but may have had instructions on how to conduct special homeowner meetings where you could take votes on recalls. There are other issues on email voting that could have been run by the attorney so the vote if you figured homeowners might vote online, so there votes would count.

In fact, your association would do well to create a policy on this stuff if you want to do email voting in the future. In the meantime, consider hedging your bets and runthis vote again and do it the old school way (show up at a meeting place, sign in, check that everyone is eligible (do you know if the volume checked against a list of ineligible homeowners due to delinquencies?), Etc?

Joannie,
I know that I would have an issue with this type of collection. Email addresses many times to not resemble the owners name. They can also be created in absence of someone's knowledge by just adding names and then numbers until you create a fake account.

Please let us know how this gets resolved. We will all learn something from your issue. Not sure what side you are on here but good luck.

I'm still not quite sure how recall ballots could be printed and hand-delivered, and the results "were gathered as pdf's and jpegs". Were the responses sent through email?

It sounds like you did a lot of preparation for the recall. Are you sure you followed all the requirements set forth in Florida Administrative Code 61B-80 and 61B-81? Specifically, 61B-81.003 describes, "Recall by Written Agreement of the Voting Interests ..." (as opposed to a vote at a Membership Meeting).

The recall form has to follow a specific form and contain specific information regarding the Directors sought to be recalled and, possibly, lines where the homeowner voter specifies his or her vote for a replacement director if the recall is successful. I can't imagine how a homeowner could possibly fill out that form and return it via email unless it was filled out, signed, scanned, and returned.

61B-81.003(g) says "The written agreement or a copy shall be served on the board by certified mail or by personal service."

As long as the written agreements are in order (pay close attention to the rest of 61B-81.003) it sounds to me as though copies of the pages are fine, including the signatures. I would assume each one has to be signed by the homeowner. I don't know what criteria the DBPR would use to declare a signature valid if it was anything other than a scanned handwritten signature.

Gotcha. Ballots received via email, printed, filled out, signed, scanned and returned as an image (jpg, tif, png, pdf etc). That actually sounds like a good way to do it.

I found this DBPR arbitration decision for Case 2004-03-4272 and 2004-03-3311 regarding a condo in Miami. Now, I'm not a lawyer and I don't know what other arbitration cases may have been decided between 2004 and today that might negate the 2004 Gatsby decision, but ...

The Gatsby case turned, in part, on an email signature question. On page 8 the board rejectd the recall ballot for unit #2 saying it failed to contain a proper signature despite the fact that it clearly indicated the intent of the owner to vote in favor of the recall. Without "any sort of electronic signature or other method for verifying that Mr. Kramer authorized the vote to recall Ms. G and Ms. B. "... e-mail recall ballots must demonstrate legitimacy with some method of signature verification."

The ballot was properly rejected BUT a footnote at the bottom of page 8 says, "A different result might be reached where an electronic or other type of signature verification is included with a recall ballot submitted by e-mail."

I think as long as the returned ballots (scanned) also contained the scanned signatures of the owners submitting them, they would be acceptable and valid. It would be up to the board to challenge the signature and, at that point, if the owner verified that he/she did, in fact, sign the ballot (scanned or not), then the DBPR would say the ballot was valid and should be counted.

In Case 2004-05-4865 a board tried to throw out 2 ballots because they were sent by FAX. The DBPR arbitrator ruled (page 3) that there are no provisions in the statutes or regulations that prohibit fax'ed recall ballots. Those voting for the recall didn't have to show that the FAX originated from the voter's phone. The FAX ballots were valid and the board improperly rejected them. Florida Statutes require written recall agreements, or "copies thereof", to be served on the board.

So I think you're good to go. The inclusion of a signature on the written agreements returned make them valid (absent any other problems). When submitted to the board there's no need to specifically say where they came from (i.e. who received the emails, who printed the signed ballot sheets, etc.) There is no attempt being made to subvert the will of the voting owners. Good luck.

This is a good point but you could take any ballot, digital or not, and alter it. In a digital age, forgery is easier but most states (if not all) allow digital documents and signatures. I would be surprised to find any court rule that it is invalid simply because it could be easily forged.

My question would be, what kind of security do you have to ensure a limited number of people have access to the ballots?

Just because you did something illegal does not mean others did.

Any form of voting can be tampered with if the right person has larceny in their heart. Showing them how it can be done is not the same as people did it.

I think the answer is "no". The DBPR has validated recalls that boards have tried to reject for a variety of dumb reasons. Boards have often challenged the validity of recall ballots but those that are substantially in compliance with the statutes and the Florida Administrative Code have never been properly rejected, i.e. the DBPR tells the board "You have to count that, it's perfectly legitimate."

There's nothing in the statute or the FAC that prohibits electronic transmission of a recall ballot. Copies of ballots are expressly permitted. If someone sends you a ballot you can copy it at Office Depot and turn in the copy to the board. That's allowed. It would be up to the board to prove that it was somehow invalid or a forgery.

You could update your Bylaws and require the use of some sort of "email signature service". Attorneys and courts use something like that. It probably costs money, though, and if members can't be bothered to put a stamp on an envelope to mail back their paper ballots, well, good luck with that. Amending the Bylaws would incur a moderate cost, too.

When a board convenes to accept or reject a recall effort, it must individually address each and every ballot it wants to challenge. If the challenge is, "we don't know who sent that email" then that reasoning will get blown out of the water if it can be shown the HOA EVER accepted an email for any purpose without questioning its authenticity. I don't think challenging the authenticity of the sender is even the issue, The only thing that could be challenged is the electronic copy of the ballot and its attending signature.

The statutes have long recognized that keeping digitized copies of paper documents is acceptable for maintaining the Official Records of an association. Since recall ballots are also official records of the association, what difference does it make where in the process they were digitized?

If you make an Official Records Request for anything, not just election/recall records, and the association provides you with copies of its digitized records, or even the digitized files themselves (such as PDF files), you don't get to reject those by asserting the possibility that they might have been tampered with. That approach will get laughed out of court, so to speak. Is it possible to alter or forge documents? Absolutely, but at some point a reasonableness test will be applied and that will shut down the "what if we didn't really land on the moon?" arguments pretty darn quick unless you can produce sworn testimony that such a thing has happened in the past.

Ask a licensed attorney, by all means, but I think you're tilting at a windmill in a battle you will most likely lose.