COOPERATOREVENTS SOUTH FLORIDA EXPO. DEC 8TH, 2022 . BROWARD COUNTY CONVENTION CENTER. REGISTER NOW!

Q&A: Seasonal Residents on Board

Q&A: Seasonal Residents on Board

Q. We are a co-op resident–owned park, with a board consisting of seven members. Our problem is that six out of those seven board members are seasonal residents, which leaves just one board member on-site for part of the year. While the rest are gone, the park still functions 24/7, and many decisions must be made during this time. I attended a Community Associations Institute (CAI) Q&A session and was informed that we could not communicate by mass email to make board decisions. So I have two related questions: 1) Can we use personal email to vote on an issue if we just send them to maybe two board members at a time? And 2) What can we do that will allow our board to make decisions while the majority of the board is seasonal?

—Part-Time Problems

A. “On the first question: Because many owners of homes in the state of Florida often retain ownership of their home up north and continue to reside there for much of the year, Florida boards of directors oftentimes find themselves without the ability to meet as a group and discuss the problems facing their community,” says attorney Eric Glazer of the firm Glazer & Sachs in Fort Lauderdale. “As the use of email has exploded over the years, board members want the ability to at least communicate with each other by email, and perhaps even vote on issues by email. 

“The law now allows directors to communicate by email but they still cannot vote by email. A vote on a matter must occur at a properly noticed meeting. The cooperative statute also specifically states: ‘Directors may not vote by proxy or by secret ballot at board meetings, except that officers may be elected by secret ballot. A vote or abstention for each member present shall be recorded in the minutes.’ It is clear from this provision that voting is to occur ‘at board meetings’ and not through any other means. In fact, the vote at the meeting is to be recorded in the minutes.

“For the second question, living away from the community is no longer an excuse for failing to attend board meetings if you are a board member. The cooperative statute states: ‘When some or all of the board or committee members meet by telephone conference, those board or committee members attending by telephone conference may be counted toward obtaining a quorum and may vote by telephone. A telephone speaker shall be utilized so that the conversation of those board or committee members attending by telephone may be heard by the board or committee members attending in person, as well as by unit owners present at a meeting.’

“So, as long as the board member lives in a place that has access to a telephone, or has cell phone service, that board member can call in to the board meeting in Florida and vote on any pending matters. As you can see, however, the association must set up a speakerphone system.

“As long as we’re on the subject of emails, board members should be aware of two things: First, arbitration decisions have held that emails by and between board members are not ‘official records’ of the association that are obtainable by unit owners, unless the email winds up on a computer or account owned by the association. That does not mean, however, that an email by and between two [or more] board members cannot be subject to a subpoena in a court case. So board members should always take caution when sending an email that even though you believe it to be ‘private,’ it is possible that it will be passed around by jurors or seen by a judge one day. Take caution and don’t write anything in an email that may embarrass you later.

“Second, there is a recent arbitration case involving a condominium wherein the statute allows access to records if the owner makes a ‘written’ request for access. The unit owner sent an email instead. The manager at first acted on the email by responding to it and promising to allow access to the records. When the manager did not allow that access, the owner filed an arbitration action against the association. The defense was that the records request was not made in ‘writing’ but instead by an email. The arbitrator rejected the defense, holding that once the manager treated the email as a writing, he was required to comply with the statute and allow the unit owner access to the records.” 

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