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Subject: Board elections conflict, yes or no?
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AnthonyS5
(Florida)

Posts:21


02/27/2019 3:16 AM  
My community By-laws specifically state in a section labeled "Election of Directors" that a mail Ballot is to be sent to all owners of record for the purposes of voting for Directors of the Board and that proxies are NOT permitted to be used for electing Directors. Another section labeled "Voting Interests;Votes" states "votes shall be cast in person or by proxy" (which is actually provided in FL 720 unless the governing documents state otherwise.) So my question here is, is there a conflict here and if so, what provision is used? Just an FYI, mail ballots were sent out prior to the past few elections but has since stopped. Any input is appreciated, thank you.
MelissaP1
(Alabama)

Posts:7932


02/27/2019 3:55 AM  
We usually vote for the board members and then the board members vote amongst themselves for the officer positions.

Former HOA President
AnthonyS5
(Florida)

Posts:21


02/27/2019 4:07 AM  
Same here in our community, but I still want to know whether our bylaws have a conflict on how to vote for the Board of Directors, in person or by a supplied mail ballot. If this is a conflict what action is taken?
MelissaP1
(Alabama)

Posts:7932


02/27/2019 4:44 AM  
Well you then all decide how you want it done and modify your documents. By-laws are typically internal documents with the HOA. The other documents CC&R's and Article of Incorporation are public documents. They do require filing. By-laws typically do not. So if you want to resolve it, then follow the rules on how to do that in those documents.

Former HOA President
SueW6
(Michigan)

Posts:458


02/27/2019 5:01 AM  
No conflict, just a limitation on proxy use.

Sounds like they want a “live election”

If nominations are taken from the floor or write ins are allowed, then this makes sense.
GeorgeS21
(Florida)

Posts:1067


02/27/2019 5:06 AM  
Anthony,

It does sound as if the Bylaws are confusingly written, but one might read the second component re proxy to mean that you could vote using the ballot and give the ballot to someone who would submit it at the meeting?

However, it is pretty clear that ballots must be sent by mail, at least initially.

Does it say specifically how they are to be returned?
RichardP13
(California)

Posts:3362


02/27/2019 6:26 AM  
If there is a conflict between the Bylaws and the CCRs or Articles of Incorporation, the CCRs and Article will prevail.
AnthonyS5
(Florida)

Posts:21


02/27/2019 7:45 AM  
Thank you all. No nominees from the floor. No mention on how to return the mail ballot but proxies absolutely not used to vote for Directors. I am in process of filing written petition to amend the Bylaws to remove this issue, as I have done this before in another HOA. All voting provisions are stated in our Bylaws, the Articles and Covenants all point to the Bylaws.
AugustinD


Posts:1453


02/27/2019 8:06 AM  
I think the quicker path to resolution may be to file a formal complaint with the board that the Bylaw requirement {that a mail ballot be sent to all owners} is being violated. This way a member can still go door to door and ask for ballots, or send out a mailing asking members to hold onto their ballots and someone will come by, pick it up, fill it out in the member's presence, and mail it per the member's direction. In your complaint to the Board, state that you understand FS 720.306(9)(c) allows you to seek mandatory binding arbitration with the Florida Division of Florida Condominiums, Timeshares, and Mobile Homes (in the Department of Business and Professional Regulation) but you would prefer to spare the taxpayer and HOA members the expense and settle this without doing so.

FS 320 in its entirety appears here:
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0720/0720.html
GenoS
(Florida)

Posts:2770


02/28/2019 1:51 AM  
Posted By AnthonyS5 on 02/27/2019 7:45 AM
Thank you all. No nominees from the floor. No mention on how to return the mail ballot but proxies absolutely not used to vote for Directors. I am in process of filing written petition to amend the Bylaws to remove this issue, as I have done this before in another HOA. All voting provisions are stated in our Bylaws, the Articles and Covenants all point to the Bylaws.

I think you should amend the bylaws ASAP so that the different sections are consistent.

I wouldn't suggest anything else. The statute says explicitly that owners have a right to vote by proxy unless the governing documents provide otherwise. It sounds like your Bylaws say "yes" and "no" with regard to proxies. Amend your documents and pray there are no legal challenges to the results of an election in the meantime.
AnthonyS5
(Florida)

Posts:21


02/28/2019 4:48 AM  
Thanks GenoS. Yes,I am aware of the statute, and our docs do state no voting for directors by proxy, so that part is understood and followed. The conflict is/was that one section states you must be "in person" to vote, but doesn't say "for directors". Another section ("election of Directors") however, does states in the election of Directors mail ballots shall be sent out to all owners for this purpose(which never happened). The problem with this is, the board passes out ballots at the meeting vs, sending out a mail ballot with a return date so members can vote by mail and NOT in person. In any event I have already proposed three amendments to our bylaws which address this issue and have already obtained the required percentage (20%) in our bylaws. I will be mailing the petition with signatures and proposed amendments out certified to the management company. We are hoping to have this put to a vote and if passed, having it recorded in time for our November election this year.
AnthonyS5
(Florida)

Posts:21


02/28/2019 4:55 AM  
In addition, I initially was going to file an election dispute (but we know it can be costly) but instead took the amendment route and am hoping for the best. I did and inspection and copy of records request, and see there is also discrepancies with the amount of members on the sign in sheet, compared to the actual amount of ballots cast. Upon further inspection I see that the year on the ballot is incorrect. Foul play? who knows, but this is an important record of the association, you would think there would be no mistake when preparing the ballot for 2018 and it shows 2016 instead.
GenoS
(Florida)

Posts:2770


02/28/2019 11:00 AM  
You could file an election dispute and you might even win. The self-conflicting provisions in the Bylaws will be front and center during the procedings, though, and the outcome may very well hinge on what side of the bed the arbitrator got out on.
AnthonyS5
(Florida)

Posts:21


02/28/2019 1:01 PM  
While this is true, we are passed the timeline for filing the dispute. The elections were back in Nov 2018. I would have had to file by Jan 2019. A lawyer I saw, made it clear of the possible costs involved. I personally paid for the consultation but decided to not pursue the dispute any further.I think we have good chance of amending the bylaws thru a vote of the membership. The remaining hurdle now is what percentage of votes is used to pass the amendments. This current board seems to pick and choose how they operate. Articles, Covenants, and Bylaws all state the same language verbatim on amendments. Amendments are passed by the majority of the entire membership. I know the statute states the 2/3 unless the docs say otherwise. Well they do, and we interprit "majority of the entire membership" to mean one more than half. Anyone else see it that way too??

KerryL1
(California)

Posts:6253


02/28/2019 1:04 PM  
Anthony wrote: "Another section ("election of Directors") however, does states... mail ballots shall be sent out to all owners for this purpose... The problem with this is, the board passes out ballots at the meeting vs, sending out a mail ballot with a return date so members can vote by mail and NOT in person."

Maybe I read your thread too fast, Anthony; do your bylaws state anywhere that Owners may vote by mail? (NOT to be confused with proxies.) Do they state this under the Section "Election of Directors?" Can you proved the exact wording if Owners may vote by mail either in general or for directors?
AnthonyS5
(Florida)

Posts:21


02/28/2019 1:09 PM  
Richard, I do understand the hierarchy with the docs however, both the covenants and articles specifically refer to the bylaws only on election voting.
AnthonyS5
(Florida)

Posts:21


02/28/2019 1:20 PM  
KerryL1, thank you. Here is what the property manager and the board both said an attorney stated (no written proof) is a conflict. Sorry for such a long reply but wanted everyone to see the full text of the two sections. Here they are as they relate to voting and elections of the Directors;


Voting Interests: Votes. Each member of the Association is entitled to one ( 1) vote for each Lot owned by him/her. The total number of possible votes (the "voting interests") shall equal the total number of Lots. If a Lot is owned by one natural person, his right to vote shall be established by a record title to the Lot. If a Lot is owned jointly by two
or more natural persons, that Lot's vote may be cast by any one of the record Owners. Votes shall be cast for Lots owned under a trust arrangement, may be cast by any trustee. Votes shall be cast for Lots owned by an estate in probate, by any personal representative of the estate. Votes cast for Lots owned by a corporation shall be cast by any officer of the corporation; and Lots owned by a business named partnership shall be cast by any partner. If two or more Owners of a Lot do not agree among themselves how their one vote shall be cast, that vote shall not be counted. Votes shall be cast in person or by proxy. Notwithstanding any provision in the Governing Documents to the contrary, any member whose right to vote has been suspended shall cease to be a voting member for the duration of the suspension and any percentage vote or consent provided for in the Governing Documents shall be calculated without any regard to the voting interests which have been so suspended. (For example, reference in any Governing Document to a specified number of the voting interests of all members shall be that number multiplied by the voting interests not suspended).

Here is the section specifically referencing elections for Directors;

At each election meeting, which shall be part of the annual meeting, the members shall elect as many Directors as there are terms of Directors expiring. In the election of Directors, there shall be appurtenant to each Lot as many votes as there are Directors to be elected. No member may cast more than one vote for any candidate,it being the intention that casting ballots in the election of Directors shall be non-cumulative. A nominating committee shall be appointed by the Board of Directors no later than sixty (60) days preceding the annual meeting. The nominating committee shall submit its recommended nominees for the office of Director, to the Board of Directors by no later than twenty-five (25) days preceding the annual meeting. In addition, any eligible candidate wishing to serve on the Board of Directors must deliver to the Association notice of his or her intention to serve on the Board of Directors,which must be received no later than twenty-five(25)days preceding the annual meeting. Any candidate may deliver a resume not to exceed one page eight and a half by eleven inches (8-1/2" x 11 "), which must be received by the Association no later than twenty-five(25)days preceding the annual meeting; the Association shall be permitted to photocopy same onto one or more pages, front and back, which must be transmitted to the owners along with the ballot as referred to below, at the expense of the Association; the Association shall have no liability for the contents of the resume. A ballot containing the nominees recommended by the nominating committee and the candidates serving timely notice of the desire to serve on the Board, shall be mailed to all owners along with the notice of the annual meeting and any resumes timely received. An eligible candidate may nominate himself or herself at the annual meeting so long as such right is guaranteed by any applicable statute as amended from time to time. A system of inner and outer envelopes shall be used in order to ensure the secrecy of the election. No Director may be elected by proxy. In order for an election ballot to be valid, the actual ballot cannot be signed nor any other indication of the voting member on the ballot, and the outer envelope must be signed with an indication of the lot number; in the event that the ballot and/or outer envelope does not comport with the foregoing, then the ballot shall be disregarded. The candidates receiving the highest number of votes shall be declared elected, except that any ties shall be decided by the flip of a coin. A newly elected Director shall take office immediately upon the adjournment of the annual meeting.





GeorgeS21
(Florida)

Posts:1067


02/28/2019 2:37 PM  
Anthony,

The paragraphs are from your bylaws, correct? They appear to be rather normally worded. Allows for orderly development of the slate of nominees, in advance, by a Nominating Committee, with the ability of each person nominated to submit both their intent and a resume of sorts. It does not say the NC must submit only enough nominees to exactly fill the number of openings.

I'm not sure what your first sentence means ...

"KerryL1, thank you. Here is what the property manager and the board both said an attorney stated (no written proof) is a conflict. Sorry for such a long reply but wanted everyone to see the full text of the two sections. Here they are as they relate to voting and elections of the Directors; "
AnthonyS5
(Florida)

Posts:21


02/28/2019 3:25 PM  
GeorgeS21 yes these two paragraphs are from our bylaws. One says vote in person and doesn't stipulate that you must vote in person for the election of directors. The other paragraph specifically states the provisions when voting for Directors of the Board. The issue/conflict is that no ballots were ever mailed out to the membership as they should have. So only those that physically attended the meeting were allowed to vote. The "KerryL1" reference was a reply to another poster, sorry.
KerryL1
(California)

Posts:6253


02/28/2019 3:46 PM  
Thanks. Well, I'd say that since "Election of Directors" has such specific language about HOW to vote, all should have received their ballots & double envelopes in the mail. That's how we do it in CA, but it's clear in our statutes the ballots may be returned to the Association by mail.

AnthonyS5
(Florida)

Posts:21


02/28/2019 5:46 PM  
Thanks KerryL1, correct...mail ballots should have been sent out, although FL statutes do not provide any language stating the ballots are to be returned to the association. We do use the inner and outer system of envelopes but again, right now the only way the board allows a person to cast, is in person. The language I proposed now states ballots are mailed and returned to the association prior to the election meeting. Hopefully this will be voted on and passed in time for this years elections. The current board (since 2016) has been conducting the elections contrary to the provisions in our bylaws, and refuse to address this conflict. Voter turnout was low for the election which I believe suppresses the vote count. Thanks everyone for the input !
RichardB37
(South Carolina)

Posts:29


03/01/2019 2:41 PM  
"An eligible candidate may nominate himself or herself at the annual meeting so long as such right is guaranteed by any applicable statute as amended from time to time. A system of inner and outer envelopes shall be used in order to ensure the secrecy of the election. No Director may be elected by proxy."

I am not an attorney, but... Is it possible that the translation of the "No Director may be elected by proxy" applies to an non-attending member represented by an attending member who puts him/her up for nomination? The disclaimer immediately follows language about nominations at the annual meeting, which is why it struck me that this might be the original intent.

Thoughts?

GenoS
(Florida)

Posts:2770


03/04/2019 3:15 PM  
Posted By AnthonyS5 on 02/28/2019 5:46 PM
Thanks KerryL1, correct...mail ballots should have been sent out, although FL statutes do not provide any language stating the ballots are to be returned to the association. We do use the inner and outer system of envelopes but again, right now the only way the board allows a person to cast, is in person. The language I proposed now states ballots are mailed and returned to the association prior to the election meeting. Hopefully this will be voted on and passed in time for this years elections. The current board (since 2016) has been conducting the elections contrary to the provisions in our bylaws, and refuse to address this conflict. Voter turnout was low for the election which I believe suppresses the vote count. Thanks everyone for the input !

Anthony, an association's governing documents, probably the Bylaws, must authorize absentee mail-in ballots if they're to be used. The statute provides for voting in-person or by proxy UNLESS the documents say otherwise, so I think you're prohibition on voting by proxy is valid.

Unfortunately, the legislature in its infinite wisdom, eliminated nominating committees for FS 718 condominium associations but neglected to do so for FS 720 Homeowners Associations. My own HOA documents also talk about a nominating committee but ours functions more as a "candidate search" committee than anything else. Our bylaws amendment TODO list includes eliminating the provisions for a "nominating committee".

If your documents provide for candidates to be nominated in advance of the annual meeting, then nominations from the floor are not required. That can cut down on confusion because any ballots mailed out in advance will obviously not contain the names of candidates who are nominated from the floor at the meeting. In any case, blank ballots should be available at the Annual Meeting for owners to use in the event that they did not receive a ballot in advance, lost their ballot after receiving it, or filled in their ballot before the meeting but have changed their their minds before submitting it.

Several DBPR election dispute arbitrations in Florida have held that where there is "anonymous balloting", the right to privacy afforded by an anonymous ballot is for the benefit of the owner, and the owner has the right to waive that privacy. Therefore, an owner who signs or makes other marks on the ballot should not invalidate it, and it should still be counted. Your specific provision that would invalidate such ballots is probably OK, but from the various DBPR arbitration rulings on the matter you might want to re-think that provision that invalidates such ballots.

Overall I think you ask good questions and are on the right track.
JohnC46
(South Carolina)

Posts:8133


03/04/2019 3:32 PM  
Posted By RichardB37 on 03/01/2019 2:41 PM
"An eligible candidate may nominate himself or herself at the annual meeting so long as such right is guaranteed by any applicable statute as amended from time to time. A system of inner and outer envelopes shall be used in order to ensure the secrecy of the election. No Director may be elected by proxy."

I am not an attorney, but... Is it possible that the translation of the "No Director may be elected by proxy" applies to an non-attending member represented by an attending member who puts him/her up for nomination? The disclaimer immediately follows language about nominations at the annual meeting, which is why it struck me that this might be the original intent.

Thoughts?





We have elected BOD Members who were nominated but were not in attendance at the Annual Meeting when we voted.

We also elected one that was not at the meeting but had permission from her to nominates her from the floor. I myself seconded that nomination.

Both of these things were arranged. They were not random.
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