Get 2 months of free community web site hosting from Community123.com!
Wednesday, November 20, 2019
Get 2 months of free community web site hosting from Community123.com!
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: Florida Recall Ballots Valid if emailed in?
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
JoanneL4
(Florida)

Posts:9


10/26/2019 12:44 PM  
Our community recently had a recall (written agreement) of a Board Member. It's a long story but needless to say the only way the community was able to accomplish achieving the required numbers was to go door to door (sometimes 2-3 times and by collecting ballots via email.

The question is this, ballots were sent to numerous residents (volunteers) via email and those volunteers downloaded the ballots, printed them and delivered them to the resident representative. Has anyone been involved in an arbitration case where the certification of a recall was overturned due to the validity of the digital ballots that were contained in the recall count?

I have found Federal Laws and State laws that discuss digital evidence and the requirements involved to ensure validity, however I can't seem to find anything regarding the DBPR and any recall ballots. Many ballots were gathered as pdf's and jpegs.
SheliaH
(Indiana)

Posts:2749


10/26/2019 3:56 PM  
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?

JoanneL4
(Florida)

Posts:9


10/26/2019 5:39 PM  
This question is not regarding local ballot voting. This question is regarding the DBPR accepting pdf and jpeg versions of written recall ballots as valid recall ballots. We literally had hundreds that are not original ballots. PDF and Jpeg files can easily be manipulated and I need to know if it’s ever been determined by an arbitrator.
MarkM19
(Texas)

Posts:448


10/26/2019 5:50 PM  
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.
GenoS
(Florida)

Posts:3328


10/26/2019 7:00 PM  
Posted By JoanneL4 on 10/26/2019 5:39 PM
This question is not regarding local ballot voting. This question is regarding the DBPR accepting pdf and jpeg versions of written recall ballots as valid recall ballots. We literally had hundreds that are not original ballots. PDF and Jpeg files can easily be manipulated and I need to know if it’s ever been determined by an arbitrator.

PDF and JPG versions of ballots meaning what, exactly? Blank ballots? Or ballots that were scanned into JPG or PDF form AFTER being signed?

Not sure I've seen anything from the DBPR about your exact question, but I've seen arbitration decisions where the signatures on some ballots were challenged and the decision on whether or not they were valid hinged on the opinion of a handwriting expert. In every ballot challenge (whether in an election or as part of a recall) I've read about, a signed statement from an owner whose ballot was challented stating that the signature on the ballot is, in fact, that of the owner, is enough to establish the signature on the ballot as valid. That happens even if it contradicts whatever a handwriting expert says.
GenoS
(Florida)

Posts:3328


10/26/2019 8:15 PM  
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.

Attachment: 11026153749971.pdf

JoanneL4
(Florida)

Posts:9


10/26/2019 9:12 PM  
The ballots were emailed to residents. The resident printed the ballot, filled it in, signed, then scanned the completed ballot. The resident then sent their ballot back as a digital image rather than via us mail or hand delivery. They emailed a pdf version to a volunteer, who supposedly printed the nallot from the pdf file. The problem is, pdf files or jpegs can be modified. The ballots printed from these volunteer collectors may not be genuine, there is no validation as they were not sent directly from the resident mrmber to the Resident Representative (who could authenticate each email was sent from a valid email address belonging to a member. )
GenoS
(Florida)

Posts:3328


10/27/2019 12:18 AM  
Posted By JoanneL4 on 10/26/2019 9:12 PM
The ballots were emailed to residents. The resident printed the ballot, filled it in, signed, then scanned the completed ballot. The resident then sent their ballot back as a digital image rather than via us mail or hand delivery. They emailed a pdf version to a volunteer, who supposedly printed the nallot from the pdf file. The problem is, pdf files or jpegs can be modified. The ballots printed from these volunteer collectors may not be genuine, there is no validation as they were not sent directly from the resident mrmber to the Resident Representative (who could authenticate each email was sent from a valid email address belonging to a member. )

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.
JoanneL4
(Florida)

Posts:9


10/27/2019 5:27 AM  
I am actually in hopes these ballots are not considered valid. One resident sent me their ballot via email. I was able to modify the ballot, undetectable, to indicate the opposite choice of the resident. The lower section of the ballot remained unchanged. Both contained the resident’s signature.
Great job on the arbitration research. Where did you search to find those?
BenA2
(Texas)

Posts:538


10/27/2019 7:01 AM  
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?
MarkM19
(Texas)

Posts:448


10/27/2019 7:23 AM  
Joanne,
I have been involved in some very contentious elections in Ca. with corrupt board members filling in multiple ballots to try to keep or gain power. The main mistake I think might have been made with this process is the lack of an "Inspector of Elections" type person. This is the person who the ballots are turned into and holds them till they are open. It can be a Property Manager but they can also go to a designee. Ballots gathered by many different individuals is a concern because they are obviously biased in one direction.

It sounds like you have a large Association and if this has to be redone it should be bullet proof.
JohnC46
(South Carolina)

Posts:8827


10/27/2019 10:03 AM  
Posted By JoanneL4 on 10/27/2019 5:27 AM
I am actually in hopes these ballots are not considered valid. One resident sent me their ballot via email. I was able to modify the ballot, undetectable, to indicate the opposite choice of the resident. The lower section of the ballot remained unchanged. Both contained the resident’s signature.
Great job on the arbitration research. Where did you search to find those?




Just because you did something illegal does not mean others did.
JoanneL4
(Florida)

Posts:9


10/27/2019 3:28 PM  
Mine was a demonstration, it was to show why digital ballots should go directly to the Representatives, as they are accountable and would be the respondent if the recall were challenged.
JohnC46
(South Carolina)

Posts:8827


10/27/2019 3:54 PM  
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.
JoanneL4
(Florida)

Posts:9


10/27/2019 4:17 PM  
I mentioned in the first post, I found Federal and State laws that cover digital evidence used in court cases, so there is obviously concerns in today’s environment. My original question still stands, I’m trying to find out if a recall has ever been overturned because the Resident Representative never had original ballots from residents, but only digital copies.
GenoS
(Florida)

Posts:3328


10/27/2019 6:03 PM  
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.
JohnC46
(South Carolina)

Posts:8827


10/27/2019 6:08 PM  
Posted By GenoS on 10/27/2019 6:03 PM
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.




I think this post should answer all the OP's original question though I doubt she will accept it. As she does not the like the results of the vote, I think she will continue to shop for answers she wants.
GenoS
(Florida)

Posts:3328


10/27/2019 7:06 PM  
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.
JoanneL4
(Florida)

Posts:9


10/27/2019 8:17 PM  
Somehow I don't seem to be getting the actual point across as some of you think I will keep asking until I get the answer that I'm looking for. Not true. I was actually told by someone that has been working HOA issues since 1998 that he had thought that emailed ballots were not acceptable (yes Faxed are acceptable.) He believed this had been decided years ago. I was hoping someone here knew about this.

There is no denying that the administrative code states that you can provide copies of the ballots (that assumes that the representative has the originals). My point is, the representative may not have originals but may only have digital ballots that were sent to the representative from many sources OR the representative could have printouts from files that were sent to other volunteers. There was no process for collecting the emailed ballots, there was no 'chain of custody' for the files, etc. I'm sure the DBPR when accepting copies of all the ballots assumes they can ask for original ballots (if needed.) In this case, they can not.

That is the questions at hand. Yes, we all know there are many documents that are kept in digital form. I am asking specifically about Arbitration of a Director Recall. These ballots could have been printed, signed and mailed back to the resident representative, which would have provided the representative with original written ballots just like all the other ballots. The ballot itself says to deliver to the Resident Representative, these ballots were not necessarily delivered to the representative but rather to other residents, then sent to the representative. (Maybe the administrative code should be updated and clarified.)
Please login to post a reply (click Member Login on the menu).
Forums > Homeowner Association > HOA Discussions > Florida Recall Ballots Valid if emailed in?



Get 2 months of free community web site hosting from Community123.com!



News Articles Provided by: Community Associations Network
News, articles and blogs about condos/HOA's

Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.







General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
HindmanSanchez Legal Notice:  (For messages posted by HindmanSanchez) This message has been prepared by HindmanSanchez for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Members of HOATalk.com should not act on this information without seeking professional counsel. Please do not send us confidential information unless you speak with one of our attorneys and get authorization to send that information to us. If you wish to initiate possible representation, please contact an attorney in our firm. Our attorneys are licensed to practice law in the state of Colorado only.

Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement