Florida Statute 720.306

Started by AlexC1 • 15 replies • 4811 views

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AlexC1 (Florida)
Posts: 25

Posted:

I have a problem interpreting Chapt.720.306, specifically - section 8 & 9 dealing with Proxy Voting and Elections respectfully. In section 8, the statutes states that 'members have the right to vote by proxy' but it's not clear what the vote relates to. In section (9), Elections - the statute states board of directors must be elected by a plurality of the votes cast by eligible voters. It does NOT say proxies may be used.

Can I assume therefore that proxy voting is allowed only on HOA issues but NOT during at yearly meetings to elect a member to the BOD ?

I would appreciate an opinion on that.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Alex,
Proxies are allowed in all voting matters of the association---IF AND ONLY IF YOUR GOVERNING DOCS DO NOT DISSALLOW THEM. I have an assoc. who does not allow them to be used. Your ByLaws will have the statement in them for proxy use. Do not forget, according to the Statutes, proxies in Florida are "LIMITED" only, meaning that they are used only for the purpose stated on them and are valid for 90 days only. They also count for achieving a required quorum number for all matters.

AlexC1 (Florida)
Posts: 25

Posted:

Donna, our documents are similar to State statutes. In the Article relating to 'Meetings of Members', documents state that members may vote by proxy, but as it relates to election defined in a different Article 'Nomination and Election of Directors', our document clearly states that "members must vote in person at a meeting or by a ballot the member personally cast. Person receiving largest number of votes shall be elected." It does not say proxies are not allowed.

Our BOD decided 2 years ago to start using proxies for elections without any member approval, I believe because of new State statutes.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Alex,
That is correct. The Statutes were written in order for Associations to be able to conduct business by proxy vote because owner apathy and absenteeism was not allowing Annual meetings to occur. That is the only required meeting according to all of our Articles of Inc. That is usually why elections are also done at that time. (I said usually, not always)

Elections do not require a quorum to be held but the meeting at which the election is held, requires a quorum, thus the proxy allowance is stated.

AlexC1 (Florida)
Posts: 25

Posted:

Thanks Donna, but I'm not sure if I understand your response.
I understand proxies may be used to establish a quorum in order to conduct a meeting and they may be used by members to vote on HOA issues. But if proxies are used to establish quorum at say a yearly meeting (as is allowed according to our documents) then for the purpose of election, can those proxies be claimed by the HOA's secretary to get re-elected ? That's the part I'm not sure about since when it comes to election, our documents clearly state "members must vote in person at a meeting or by a ballot the Member personnaly cast."

DonnaS (Tennessee)
Posts: 5,671

Posted:

Alex,
OKay, we have half of this under control, so lets go again at the voting. Your Documents do not state allowance for Proxy use reguarding the elections. Therefore, NO, the Secretary cannot use proxy votes to get reelected as your documents only allow proxies for establishment of a quorum. You have quoted your docs and the last sentence is what you go by.

Read the use of Proxies again in your Docs and the Statutes,as they are called "limited". They must have the purpose of the proxy written on them , date of the meeting, place of the meeting and be signed by the holder of the proxy and the designated voter (or person using the proxy).

What is hard to understand for many people is that if you need (Examples--
100 members in person or by proxy to have a quorum and you obtain that.
Then you have an election and only 20 people vote. That is still a legal vote. The person with the most votes wins, even if it is 11. Quorum was obtained so all is well.

AlexC1 (Florida)
Posts: 25

Posted:

I think I finally got it. Thanks Donna, your response confirmed my belief our Board has abused 'proxy voting' for the last 2 years and I'm about to put a stop to it - even if it means calling for a new election.

Alex

PaulM (Pennsylvania)
Posts: 1,347

Posted:

AlexC1: If you intend to put a stop to proxy voting, think about the use of Absentee Ballots instead to capture the greatest return for
members' designated votes.

Lots of luck in your perseverance and unending energy to get your association on the right track!!!

DonnaS (Tennessee)
Posts: 5,671

Posted:

Paul,
Unfortunately, Florida does not have allowance for absentee voting in Statutes 720, the HOA statutes. The use of mail-in ballots is what we do. Technically, absentee balloting is almost the same as the mail-in. That is also the reason that Fl allows these "Limited Proxy" voting procedures. Basically, you vote but assign another person to carry your ballot and instruct that person to vote for you selection.

PaulM (Pennsylvania)
Posts: 1,347

Posted:

DonnaS & Alex: Your response is unclear on what a mail-in ballot is or if it is different from an absentee ballot.

Since FLA allows for "Mail-in Ballots", why can't the resident/member mail in their ballot (in absentia) to the pre-appointed "Election Committee" overseeing the process and have the ballot opened/counted with all others? No need for proxies and the chance of fraud that goes with it.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Paul,
As I stated above, the Statutes do not have the wording of "absentee Ballot" in them. Mail ins , as you suggested, is what we use, along with proxy voting. One of my associations does not allow proxy voting but it must be stated in the ByLaws. I am not a fan of them because of the possibility of misuse. but yes, we certainly can do mail-in voting but the association documents are required to have the verbage for allowances.

AlexC1 (Florida)
Posts: 25

Posted:

I'd like to thank everyone for your response. It appears our Board made a mistake (or maybe that was their strategy) in using proxies starting 2 years ago. Prior to that, members had to vote in person - as stated in our bylaws. Neither proxies nor ballots are defined in our bylaws as a voting media, so I assume our LCAM erred 2 years back in thinking the State allows it therefore it's ok for the HOA. But our proxy wording is biased, as it automatically makes the HOA secretary the appointed proxy holder thereby giving her control over who she wants to get elected.

Alex

SusanW1 (Michigan)
Posts: 5,202

Posted:

If you don't want to "give" your vote away with a proxy,i.e. allowing another person to cast your vote the way they deem best, then make it a designated proxy i.e. instruct the person to vote a particular way and mark that on the proxy ballot.

The Board should indicate both kinds on the proxy form.

Voting can get very complicated:
In-person voters get to make and hear nominations from the floor, participate in debate, write-in candidates, break ties, and make amendments to the motion.

Absentee voters (mail-in) get to use write-in candidates, but miss debate and floor nominations, amendments to the motion.

PaulM (Pennsylvania)
Posts: 1,347

Posted:

AlexC1: Be careful of the term 'proxy holder' vs. proxy voter; they certainly are not the same. If the wording in your Bylaws states the Secretary is to hold the proxies, then that is what she is to do, hold them safely for counting at the meeting. This is not the same as giving the Secretary power to vote on one's behalf.

It is also somewhat interesting that you and Donna are both in Fla. Assns., yet Alex-Fla. docs do not state that proxies nor ballots can be used as a voting media (what media is stated; do you use a raise of hands???).....but Donna Fla. states their voting media MUST be in their docs for it to be used.

Strange...

DonnaS (Tennessee)
Posts: 5,671

Posted:

Paul,
Perhaps Alex has not given his ByLaws in their entirety. Alex has said that proxies are used for establishing a quorum but cannot be used for voting. That is legal per the Statutes.

And you are right Paul. The State does not state how we are to vote--paper ballots, show of hands, etc but proxies are addressed and they are allowed only if the governing docs allow them.

AlexC1 (Florida)
Posts: 25

Posted:

That is correct, proxies were to be used for establishing quorum requirements (period) but our CAM allowed proxy holders to appoint a proxy voter who, in all cases was the association's secretary. FL 720.306 says election must be held according to association documents. Our documents, while allowing proxy voting, specifically say election must be cast in person. It doesn't say NO proxy, so I interpret that as saying only members present at the annual board meeting may cast a vote to elect a board member.

Akex

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