Hands Off that Ballot Box!

Posted on January 27, 2012 by Scott Gordon

Florida's Republican primary is just a few days away and many, if not most, of the community associations in our state are in the midst of their own ROC board elections.

What better time to remind unit owners in condominiums and cooperatives about the procedures that must be followed if the association wishes to verify information on the outer envelope (which contains the inner envelope in which the completed ballot has been placed).

Florida Administrative Code Section 61B-23.0021(10)(b) describes the process for condominium associations and FAC Section 61B-75.005(10)(b) details the process for cooperative associations.  These sections provide that an association that wishes to verify outer envelope information in advance of the annual meeting may do so as follows:

  • The board designates a committee that does NOT include current board members, officers, candidates for the board in this election, or the spouses of any of these persons--this is defined as being "impartial" in these two FAC sections
  • This impartial committee may then hold a meeting to verify the outer envelope information.
  • This meeting must be noticed in the same manner as board meetings and must be open to all unit owners

At the meeting of this impartial committee, the signature and unit identification on the outer envelope must be checked against the list of qualified voters and the voters shall be checked off on the list as having voted.  

Any exterior envelope not signed by the eligible voter shall be marked "Disregarded" or with "words of similar import," and any ballots contained in those disregarded envelopes shall NOT be counted.

A few more very important points:

Neither the inner nor the outer envelopes can be opened until the "polls are closed" and no more ballots are being accepted.

The outer envelope must be signed by the eligible voter--simply sticking an address label with the eligible voter's name on the outer envelope--without some evidence of that eligible voter's signature--is NOT sufficient

Finally, and perhaps most important, any meeting of the impartial committee to verify the outer envelope information MUST be held on the day of the election.   ROCs that allow this committee to verify these outer envelopes prior to the day of the election are violating Florida law.

I assume that the drafters of these FAC sections realized that not allowing the impartial committee to meet until the day of the election would result in some very long annual meetings--and I've had the pleasure of serving as the "entertainment" at many resident owned communities while the envelopes were being opened and the ballots counted!

Our next four weeks will be very busy with annual meetings and seminars in Bradenton, Lake Placid, Bonita Springs, and Venice.   We hope to see you at one of those seminars--please contact Karen (kmidlam@lutzbobo.com) or Kathy (ksawdo@lutzbobo.com) if you haven't already rsvp'd and want to attend one of those events.

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Condominium and Cooperative ROC Members Should Understand the Difference Between Ballots and Proxies

Posted on December 7, 2009 by Scott Gordon

We are now well into our "season" in Florida and most resident owned communities will be holding their annual meetings during the next few months.  It's thus a very good time to remind my blog readers that are members of condominium or cooperative associations of some of the important differences between ballots and proxies:

  • In general, neither general proxies nor limited proxies can be used to elect the directors of a condominium or cooperative association.   The applicable provisions of the Florida Statutes that deal with the election of directors of condominium associations (F.S. Section 718.112(2)(d)) and cooperative associations (F.S. Section 719.106(1)(d)) specify that the members of the board of directors shall be elected by "written ballot or voting machine".   While the majority of voting interests in a condominium association with ten or fewer units or a cooperative association can provide in their association's bylaws for a different voting procedure that allows for elections to be conducted by limited or general proxy, I suspect that the bylaws governing most ROCs do not allow for this alternative procedure.
  • F.S. Sections 718.112(2)(b) and 719.106(1)(b) provide that, unless the association's bylaws provide for a different percentage, the percentage of voting interests required to constitute a meeting of the members shall be a majority of the voting interests (in other words, 50 percent plus one) and that, unless otherwise provided in the association's governing documents or the applicable Chapter of the Florida Statutes (either 718 or 719), "decisions shall be made by owners of a majority of the voting interests represented at a meeting at which a quorum is present".    While limited proxies or general proxies can be used to establish a quorum as provided in Sections 718.112(2)(b) and 719.106(1)(b), ballots cannot be used for this purpose.   In other words, in order for a member to be counted as "present" in establishing a quorum at the annual meeting (or other membership meeting), that member must either be present in person at the meeting or have delivered his properly executed general or limited proxy to his proxy holder or the association prior to the meeting.
  • Neither general proxies nor ballots can be used for votes to waive or reduce the statutory reserves otherwise required by statute or to waive the financial reporting requirements of F.S. Section 718.111(13) (for condominium associations) or F.S. Section 719.104(4)(b).  The only way a unit owner can validly vote on these matters is either by limited proxy or in person at the meeting where the voting occurs.
  • The election of directors occurs at the annual meeting even If a quorum cannot be established at that meeting if at least twenty percent of the eligible voters have cast a ballot in that election, as provided in F.S. 718.112(2)(d)3 and F.S. 719.106(1)(d)1.

The provisions governing timeshares and mandatory homeowners associations are somewhat different and members of timeshare communities and subdivisions should consult with their association's attorney for additional information.

 

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