On October 26, 2015, the Division of Florida Condominiums, Timeshares, and Mobile Homes approved a proposed rule to amend and supplement the Florida Administrative Code provisions regarding condominium associations’ voting and elections. The proposed rule provides condominium associations with the option to allow the unit owners to vote using an online system, as an alternative to the traditional paper ballots.
While the language of the rule may change before it becomes final, as it stands, the following must occur before a condominium association may utilize an online voting system:
- The Board of Administration must pass a resolution authorizing online voting by unit owners.
- At least 14 days before considering the resolution, the Board must notify the unit owners of the meeting at which the resolution will be considered by (1) conspicuously posting notice of the meeting on association property and (2) sending written, including electronic, notice to unit owners.
- The resolution must establish:
- A deadline at least 14 days before the election or vote before which unit owners must consent in writing to online voting
- Procedures by which unit owners can give their written consent to opt in or out of online voting;* and
- That prior to each election or vote where the association has authorized online voting, all unit owners receive notice of their option to use the online voting system
- The electronic voting system itself must:
- Provide the unit owner with a vote receipt, which includes the vote cast, date, time, and user identification
- Provide an official record , which the association must keep for one year from the date of the vote, election, or meeting to which the vote pertains
- The official record must identify the vote cast, date, time, and sufficient other information to allow the association to recount, inspect, and review.
- Be able to authenticate the unit owner’s identification
- Be able to authenticate that the vote was not altered in transit
The above list contains the general requirements associations must follow to use online voting for any election or vote. In addition to these general requirements, the proposed rule lays out requirements that apply only to online voting in Board elections. Where online voting is used in Board elections:
- The voting system must be able to eliminate all identifying information from the ballot, rendering it impossible to trace the ballot to the unit owner.
- The first notice of the date of the election must disclose the procedures and deadline for unit owner consent to online voting.**
- The association must ensure the votes are not available to the association prior to the scheduled election, as failure to follow this rule will void the election.
The proposed rule also amends the requirements to close the voting polls. Under current regulations, the polls must be closed prior to opening the first outer envelope of a traditional paper ballot. However, under the proposed rule, the polls must be closed prior to (1) the opening of the outer envelope or (2) accessing the electronic votes.
While any well-functioning condominium association can handle implementing the new notice requirements, the trick for any association seeking to implement electronic voting may be to find an electronic voting system vendor capable of meeting the proposed rule’s technical requirements.
*The procedures for opting out of online voting are particularly important for two reasons. First, after a unit owner consents to online voting, the consent is valid until the unit owner follows the established procedures for opting out. Second, unit owners who have consented to vote electronically are counted as in attendance for quorum determinations, and we all know the importance of having a quorum.
** For any unit owner delinquent in any monetary obligation to the association, the first notice must be accompanied by a separate notice identifying the unit owner’s current assessment ledger.
If you have any questions regarding electronic voting procedures or any other condominium association matters, please feel free to call Henderson, Franklin, Starnes & Holt, P.A. at (239) 344-1100. We would be more than happy to answer your questions.