Every condo, HOA and co-op community in the state of Florida has to elect a board of directors to make sure, in conjunction with the building’s manager, that the community’s finances, physical maintenance and other day-to-day items of business proceed without major problems and that the association remains solvent and sound. For this reason, the annual election meeting is probably the most important gathering in the development.
Although board elections are governed by state statute, circumstances under which elections are conducted vary from one development to another. In some, there may be only one uncontested slate of candidates; in others, with more contentious issues, there can be competing slates, with vigorous campaigning leading up to the election. Some condos use professional election firms to do the counting, while in others, the board president or manager handles it themselves with the help of volunteers.
This year is different from others—in July, a new state law took effect that allows community associations to conduct their voting online, although boards will still be permitted to vote the old way. While some other states have had this option for a while, this is a new ball game for Florida communities.
To begin with, how often must condos, HOAs or co-ops hold a board election? Attorney Eric Glazer, founding partner of the law firm of Glazer & Associates, P.A. in Fort Lauderdale, says that for all three types of communities, “Generally speaking, all elections much occur at the mandatory annual meeting of the owners. 'Staggered terms’ are allowed, however, meaning that only some of the board positions are available because some spots were elected the previous year for a two-year term.”

Condos, Co-ops and HOAs

Within this general framework, however, there are some differences in the election process between the different types of communities.
Glazer says “Condominiums have a better election process than HOAs and co-ops here in Florida. In a condo, the association must mail a notice of the annual meeting at least 60 days before the election. Unit owners then have the opportunity to submit their name as a candidate. At least 14 days before the election, the association then sends out ballots to all the unit owners. These ballots are place in envelopes labeled Ballot Envelopes, but otherwise unmarked.” The ballot envelope is then placed in a larger envelope that the owner is required to sign and put their unit number. The envelopes are opened at the annual meeting after the signatures on the outer envelopes have been verified.
“Voting by proxy is not allowed,” Glazer continues. “A quorum of owners is not required. However, 20 percent of the owners must participate in the election for it to be valid.”
By contrast, he says, in an HOA, unit owners just show up at the annual meeting, and nominations can be taken from the floor. Even people who are not present at the meeting can be nominated. Here, voting by proxy is allowed, and owners try to gather their neighbors’ proxies in advance of the meeting. However, there must be enough attendees at the annual meeting to make a quorum in order to have an election. If a quorum doesn’t show up, the current board members just continue for another year.
“Condo owners can appeal to the [state] Ombudsman’s Office if they have a problem,” says Brian Gittens, president of The Voting Group, which is based in New York but conducts elections in Florida and elsewhere. “But HOAs are not under their jurisdiction yet, so they can’t ask the Ombudsman’s Office for help if they need it.”

Electronic Voting

Currently, the big question in the Sunshine State is how electronic voting will to change Florida board elections in general. Will it be a godsend, protecting us from cumbersome paperwork, or will the technology create problems of its own? It’s too soon to know exactly, but opinions among industry pros differ considerably.
Attorney Lisa Magill, formerly with Becker & Poliakoff, spells out what has to be done to get the new system adopted. A board needs to adopt a resolution to implement electronic voting at a meeting announced at least 14 days in advance of an election.
A board wishing to implement online voting must have the owners’ consent, and have a method to verify the identity of the voters and ensure the secrecy of election ballots. They must then test the system at least 14 days before the election, ensuring that owners’ computers, smartphones or other devices can communicate directly with the tabulation system.
According to Magill, whatever system is used, it must authenticate the voter’s identity, ensure that the vote wasn’t modified or altered in transit, give a receipt to the voter, separate the identity of the voter from the vote itself, and keep the actual votes accessible for future inspections or audits.
Glazer says he isn’t a fan of electronic voting. “The statute,” he says, “requires it to be impossible to determine how an owner voted, yet his or her vote must be preserved. It also allows for the possibility of owners to allow other owners to vote for them simply by sharing your password or other sign-in information … and by the way, on the night of the election, who get access to the computer system to determine how people voted online? Is it the board members who are running for re-election? Is it the manager? Is it the attorney?”
But Linda Gibbs, president of the New York-based Honest Ballot Association, which, like The Voting Group, also conducts board elections in Florida, likes the new idea.
“It’s definitely a good thing. Paper will also be around. I do it all—electronic touch-screen voting, online voting using a fool-proof pin number [for each unit owner],” says Gibbs, who owns a home in Florida. Online electronic voting, she says, will also allow owners who have trouble leaving their units to vote.
Gittens of The Voting Group adds that even when electronic voting is adopted, the old-fashioned method still needs to be available for those who want it. “Not everyone has internet access, and believe it or not, not everyone is comfortable using a computer. Also, some people have questions about security.”

In Detail

Regardless of whether your HOA uses “regular” or electronic voting, the law specifies how much notice has to be given. As we’ve mentioned, in condos, the first notice of an upcoming election must be mailed, emailed (if an electronic consent form has been received) or hand-delivered at least 60 days before the annual meeting and election. It could even be part of another form of communication, such as a newsletter.
Regardless, it must include the date, time and location of the meeting, information about how a unit owner can become a candidate, and what information a prospective board candidate needs to submit. Forty days before the meeting is the cut-off for any candidate to submit their intention to run for a board position; 35 days is the cut-off for submitting a candidate information sheet
A second notice must be mailed or hand-delivered between 14 and 34 days in advance of the annual meeting. The second notice, says Gibbs, includes the “voting package”—the ballot, a limited proxy for quorum purposes (although, as we’ve mentioned, proxy voting itself is not allowed in Florida condos and co-ops), voter certificate, the agenda for the meeting, and the two aforementioned envelopes for use by the voter. By the way, even before the electronic voting bill passed, stationary voting machines were allowed in place of the two-envelope system
As far as the HOA timetables are concerned, Gittens says the law is somewhat vague on the subject—it just states that notices have to be given not less than 14 days on the subject. “[The laws] just say that elections of directors must be conducted in accordance with the procedures set for them the governing documents of the association. Some HOAs have taken steps to amend their bylaws or governing documents in order to make their elections more like condominium and cooperative elections,” he comments.
It goes without saying that in all three types of communities (condos, co-ops and HOAs), as in almost all elections in the United States, the voting needs to be secret.

Who Should Supervise

During the actual voting itself, in condos and co-ops, the rules require that you ask for volunteers who are not running for the board or living with someone who is running for the board to help with the election process. Usually, the condo association attorney or the manager administers and runs the annual meeting, says Glazer. In addition, if 15 percent of the unit owners sign a petition, a member of the Office of the Condominium Ombudsman will come and supervise the election for a fee.
Hiring an outside company to oversee an election is also an option. “We are impartial—we do not care who wins or loses,” says Gibbs, adding that professional tabulators are often also more affordable than attorneys. Gittens adds that there are many methods that can be used to ensure security, for example, using special paper that cannot be copied, using a bar code that identifies the bearer, signature verification and asking shareholders for a photo ID before allowing them to cast their ballot.
But not everybody feels the same way. Glazer counters that “In Florida, at the moment, there are absolutely no formal qualifications for an outside company, nor will the state sanction any specific company. So if `Fred’s Computer Company’ in the Philippines, for example, says they can handle the electronic voting, they get the job.”

Problems, Problems

So what happens if someone (usually a group of unit owners) contests an election? In Florida, they have 60 days to do so. Election disputes are typically overseen by arbitrators employed by the Department of Business & Professional Regulation (DBPR). According to Glazer, professional arbitration keeps disputes out of the courts while still providing both sides a chance to be heard.
Similarly, unit owners have the right to recall any member of the board. “Generally speaking,” says Glazer, “if 50 percent of the eligible voters sign a specific petition seeking the removal of a board member, that board member is removed. However, it's oftentimes a complicated procedure that results in arbitration proceedings.”
Another complicated—although unusual—situation can arise if a board refuses to hold new elections. In these cases, says Gittens, co-ops and condos can petition the Ombudsman’s Office, which will exert pressure on the association. Fines may be levied if the association doesn’t comply.
Going through with such a process, of course, is not cheap. “You’ve got to hire your own lawyers,” says Gibbs. Then, she says, “The ombudsman or arbitrator gets the lawyers together.”
In general, the way to avoid these problems is to inform all the unit owners of each step in the process, encourage their participation and abide by the laws and the governing documents. Whether the process used is by paper ballot, voting machine or the newfangled electronic voting, the object is the same—to ensure the well-being and smooth running of your community.  
Ranaan Geberer is a freelance writer and a frequent contributor to The South Florida Cooperator.