A service of:
Community123.com
Professional websites for HOAs & condos, since 2004
🎁 1st year FREE for HOATalk members! →
← Return to Topics List

Ballot Envelope snafu, is it legal?

Started by ChrisS29 • 12 replies • 316 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in

ChrisS29 (Florida)
Posts: 48
Posted:
My HOA is about to have it's first Board election. This was supposed to happen a month ago but because of a mistake with the ballot information it was cancelled. They cancelled one hour before the meeting because they "forgot" to put two of the candidates running. This strikes everyone as a bit odd as no one came out and said anything for weeks, but the management company also may be catching wind of a lot of residents unhappy with them.

So now we have another ballot, but instead of giving us one outer envelope and one inner secret ballot envelope, we were given two outer ballot envelopes. The management company said to just write on the envelope you use for the inner envelope that you received two outers. The issue being, did everyone in the community receive two outers? What if select people did, or even a couple random people? Even if it's sporadic with no conspiracy theory behind it, the fact that people have emailed the management company to inform automatically makes their ballots identifiable. In Florida Board elections must be secret ballot.

So, is that legal? Or do they need to resend the ballot information again with the correct envelopes?

ElleN (Idaho)
Posts: 4,420
Posted:
I agree that at least some of the ballots no longer qualify as "secret." This appears to violate FS 718.112 (2) (d) 2.

Consider writing the board about this violation. Tell them that this situation appears to be one over which the Florida Office of the Condo Ombudsman has authority, pursuant to FS 718.5011 and FS 718.5012 (5). Ask them to remedy the situation. Give them a specific suggestion for a remedy. Give them a deadline to reply.

Your letter should be just the facts and zero emotion. The facts speak loud all by themselves.

Quote:
Posted By ChrisS29 on 04/23/2024 8:38 AM
In Florida Board elections must be secret ballot.
Nit: I believe this is so only for condo associations to which FS 718 applies.
SheliaH (Indiana)
Posts: 6,964
Posted:
Mistakes can and do happen - you said no one noticed this for weeks, which I find interesting. Did the people whose names were left off say something? If so, why did it take several weeks before they spoke up?

You say the law requires secret ballots, but does it specify two ballots? If not, you could use one, although I agree that security is a concern. Those envelopes should be placed in a secure location when received and not opened before the appointed time. I would prefer that be done during a special homeowner's meeting where everyone can see what's going on, and the opening and counting should be done by people who aren't related to the candidates. I would run the election similar to what's done by the county (although Florida seems to do weird things when it comes to elections - remember the Bush/Gore presidential election?)

During the meeting, the envelopes should be checked against a list of homeowners in good standing to ensure eligibility (e.g. no delinquent asse3ssments. If you have one vote per household, you shouldn't have two envelopes submitted by co-owners - they need to decide among themselves who will cast the vote. Once the envelopes are checked out, you can open them and then someone call out the vote, as in "one vote for Madame X" (you DO NOT call out the homeowner's name). Someone else can look at the ballot to ensure the right name was called and it was signed and dated by the homeowner. A third person can keep track of the number of ballots to ensure the number of ballots cast don't exceed the number of homes.

You didn't say if you've talked to the management company about this - do that and see what they have to say, especially what they plan to do to ensure security and that the election is valid.
If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
ChrisS29 (Florida)
Posts: 48
Posted:
At the moment we don't have a Board, it's a developer turnover. All of the people who ran for the Board in the first round have been vocal about issues with the developer and the management company installed by the developer, which is why there is suspicion about these last minute additions of new candidates that haven't been involved in the community until now.

I believe as a townhome HOA we are bound by 720, but I'd imagine that a lot of the election process for 718 and 720 would be similar. I did find the secret ballt information on 720.306 (8)(b)

I don't think we have enough time to stop this election unless residents exert enough pressure on the management as it's a day away, but if the state is informed prior to the election they can have the management company re-run after?
ChrisS29 (Florida)
Posts: 48
Posted:
Quote:
Posted By SheliaH on 04/23/2024 9:14 AM
Mistakes can and do happen - you said no one noticed this for weeks, which I find interesting. Did the people whose names were left off say something? If so, why did it take several weeks before they spoke up?

You say the law requires secret ballots, but does it specify two ballots? If not, you could use one, although I agree that security is a concern. Those envelopes should be placed in a secure location when received and not opened before the appointed time. I would prefer that be done during a special homeowner's meeting where everyone can see what's going on, and the opening and counting should be done by people who aren't related to the candidates. I would run the election similar to what's done by the county (although Florida seems to do weird things when it comes to elections - remember the Bush/Gore presidential election?)

During the meeting, the envelopes should be checked against a list of homeowners in good standing to ensure eligibility (e.g. no delinquent asse3ssments. If you have one vote per household, you shouldn't have two envelopes submitted by co-owners - they need to decide among themselves who will cast the vote. Once the envelopes are checked out, you can open them and then someone call out the vote, as in "one vote for Madame X" (you DO NOT call out the homeowner's name). Someone else can look at the ballot to ensure the right name was called and it was signed and dated by the homeowner. A third person can keep track of the number of ballots to ensure the number of ballots cast don't exceed the number of homes.

You didn't say if you've talked to the management company about this - do that and see what they have to say, especially what they plan to do to ensure security and that the election is valid.

The two candidates that appear on the second ballot have never participated in the resident meetings we've had, nor in the Facebook Group for the community. So, naturally you'd think if their name was left off they'd post about it on the Group, right? The meeting was cancelled an hour before it began and the two new candidates still haven't talked about what the issue was or how they handled it, which is why people are getting nervous about the developer installed management company muddying the waters since the original candidates were outspoken about the way the developer has handled the community.

As far as the meeting, I'm not sure if anyone is even allowed to attend in person. They are using Zoom meetings from the management office and discouraging anyone from showing up.

Residents have contacted the management about the error and were told to just make a note that they did not receive an outer envelope and use the ones they provided. Technically that identifies anyone that contacted them.
LetA (Nevada)
Posts: 2,679
Posted:
Definitely seems hinky, I can't fathom how someone did not catch this earlier. This is your first warning
to your HOA the very moment the declarant hands over the HOA to the owners and the board is seated with owners.
Fire the declarants PMC and put out a bid for a new company, then fire them.
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By ChrisS29 on 04/23/2024 9:19 AM

I believe as a townhome HOA we are bound by 720, but I'd imagine that a lot of the election process for 718 and 720 would be similar. I did find the secret ballt information on 720.306 (8)(b)
Check your Declaration and Articles of Incorporation to see whether FS 720 or FS 718 applies. Your figuring this out is of the utmost importance, if you want to keep your board in line.

I disagree that FS 720.306(8)(b) requires secret ballots.

If your governing documents require secret ballots, this is a different matter.

We are back to square one until such time as you can provide which statute applies.

Please consider always indicating which statute applies in any thread you start.

ChrisS29 (Florida)
Posts: 48
Posted:
Quote:
Posted By ElleN on 04/23/2024 9:34 AM
Posted By ChrisS29 on 04/23/2024 9:19 AM

I believe as a townhome HOA we are bound by 720, but I'd imagine that a lot of the election process for 718 and 720 would be similar. I did find the secret ballt information on 720.306 (8)(b)
Check your Declaration and Articles of Incorporation to see whether FS 720 or FS 718 applies. Your figuring this out is of the utmost importance, if you want to keep your board in line.

I disagree that FS 720.306(8)(b) requires secret ballots.

If your governing documents require secret ballots, this is a different matter.

We are back to square one until such time as you can provide which statute applies.

Please consider always indicating which statute applies in any thread you start.


You're right, I missed the part of "If the governing documents permit voting by secret ballot by members". So, I'll have to check the documents.

I've lived in condos where they allowed non-secret one year and disqualified them the next year, both times citing 718 and both times being the same attorney.

Thanks.
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By ChrisS29 on 04/23/2024 9:51 AM

I've lived in condos where they allowed non-secret one year and disqualified them the next year, both times citing 718 and both times being the same attorney.
I see I missed that even FS 718 qualifies the secret ballot section I cited with "Unless the bylaws provide otherwise... " On the other hand, I think it would be unusual for bylaws to prohibit secret ballots.

HOA/COA attorneys do not know it all. Sometimes they have to make an educated guess and just state such-and-such choice appears to be the least risky. Without knowing more, it's hard to say if the attorney at your former condo knew what he/she was doing.
KerryL1 (California)
Posts: 14,550
Posted:
The way 2-envelope secret ballots work (at least in Cali) is that the outside envelope must have the owner name, HOA addy & owner signature on the envelope. The inner envelope has nothing on it, so no one knows how anyone voted on the ballots.

If owners are instructed to ONLY write "I rec'd two outers" on the envelope they use as an inner envelope, you'll still be voting by secret ballot. Imo, so long a the inner envelope, whether it's actually an outer, does not matter IF there's nothing on it to identify the voter.

FL statute, or perhaps your own Bylaws should tell you if "Meetings of the Members (owners)," like elections of directors, must be held in a physical location. State statutes might address this topic, too. In what way is mgt. "discouraging" owners from attending in person????

It's probably your Bylaws that state if there must be secret ballots. I guess it's possible it'd be in your Articles of Incorporation or CC&Rs.

Didn't owners receive something in US mail stating when the deadline for nominations was??? Usually this is a few weeks. before ballots are sent out. If so, these two "new" candidates cannot be added. But if your Bylaws permit nominations from the floor AT the meeting, they can nominate themselves at that time.

It does appear that the MC is trying to create chaos and confusion as a way to get "there" ppl. voted in. OR they simply are incompetent. Either way, not long after owners take control following this election, the Board should interview at least 2-3 management companies and dump this one.

ChrisS29 (Florida)
Posts: 48
Posted:
The meetings are at the management company's office, so there is nowhere a community meet in an office. I don't recall recall the exact wording. Most of the candidates have agreed that it's unacceptable and they'd find a way to have meeting in the community.

Regarding the nominations, it's a mystery. I'm sure it will come up in the meeting because people have been asking and it's very odd that the added candidates aren't even offering an explanation.

I think they are planning researching new companies as well.
KerryL1 (California)
Posts: 14,550
Posted:
It' really time that you Read your docs, Chriss. Especially your Bylaws.

what size is your HOA?
LetA (Nevada)
Posts: 2,679
Posted:
As for the secret ballots, we receive a letter in the mail "USPS" with a ballot on a separate page.
There are two envelopes mailed with the ballot and letter. One envelope is pre addressed with the homeowners
return address and the HOA office as the mail to address, the other envelope is marked "official ballot"
You fill out the ballot, fold it and place it in the official ballot envelope and seal it. place the ballot
envelope inside the return addressed envelope, seal it, put a stamp on it and mail it.
You can bring your official ballot to the meeting when the ballots are counted. ALL ballots
must be sealed. any ballots received will not be counted and the sender notified.

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

  • ✓ Ask follow-up questions
  • ✓ Share your experience
  • ✓ Get expert advice
  • ✓ Access 350,000 discussions
Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here

Terms of Use and Privacy Statement