“Avoiding Election Pitfalls,” FCAP Managers Report

“Avoiding Election Pitfalls,” FCAP Managers Report

Avoiding Election Pitfalls

Many condominium associations are gearing up for, or in the midst of, election season, which presents challenges and questions regarding the election process. Condominium elections that fail to follow the procedures outlined in the Condominium Act, Florida Administrative Code, and the association’s governing documents can result in an election being voided. Homeowners’ associations should check their governing documents to determine if they have adopted condominium election procedures or condominium-style elections. Homeowner association governing documents detail the election procedures. Running afoul of proper election procedures that result in an election that must be “redone” can jeopardize the credibility of the board and manager in the members’ eyes.

Condominium elections are conducted on the date of the annual meeting, regardless if a quorum is present. While a quorum is not required, at least twenty percent (20%) of the eligible voters must cast ballots to have a valid election. Condominium elections must be done by secret ballot or voting machine and may including online voting if the association has provided for and authorized online voting. Proxies may not be used to elect directors but may be used for other matters occurring at the annual meeting, such as voting to waive or partially fund reserves or amendments to the governing documents. Unlike many homeowners’ associations, a condominium cannot use a nominating committee but may create a search committee to encourage eligible persons to run for election.

First, the association must determine the date of its election as the election date controls deadlines for sending and receipt of notices. Often the annual meeting date, or date range, will be dictated by the governing documents, so the association should start with a review of its governing documents. At least sixty days before the election, all owners must be mailed or electronically transmitted, if the owner has opted into electronic notice, the first notice of the election. The first notice must contain the name and mailing address of the association and must disclose the procedure and deadline to consent to electronic voting if the association has provided for and authorized electronic voting. If the association fails to follow the procedures for the first notice, the election must be re-noticed with a new first notice if the election is more than sixty days away; if the election is less than sixty days away, then the election must be rescheduled. If the error is discovered after the election, then the association must conduct a new election.

At least forty days before the election, eligible persons who desire to be a candidate must give the association their notice of intent to be a candidate. U.S. mail, facsimile, personal service, telegram, and email all suffice as notice, and such notice is effective upon receipt. However, the Association should implement procedures so it can verify a candidate timely submitted the notice, and you do not get into a dispute with a prospective candidate who claims to have slipped the notice under the manager’s door at 11:59 pm on a Wednesday evening for a Thursday deadline.

At least thirty-five days before the election, the board candidates may furnish the association with a candidate information sheet. The association may not edit, alter, or modify the content of the information sheet. The Association must furnish the candidate information sheets to each owner, which should accompany the second notice of the election. If the Association fails to send all eligible voters the candidate information furnished by each eligible candidate, then the association must send an amended second notice, which must explain the need for the second notice and include the candidate information sheets, to all owners assuming there is sufficient time to do so. If there is not enough time, then the election must be rescheduled and a new second notice sent to all owners. If the election has already occurred, then the election is void and must be redone.

For an election to be necessary, a vacancy requires two or more eligible candidates. If not enough eligible candidates notice their intent to run, then an election is not required and will not be conducted. Since write-in candidates and nominations from the floor are not accepted, the association will know well in advance of the scheduled election if it is necessary. The association should also be aware to ensure only eligible candidates are listed on the ballot. The association should review its governing documents to determine if board members must be unit owners. Further, persons delinquent on any monetary obligation due to the association are not eligible to be a candidate for board membership. The date to measure delinquency is the last date notices of intent to be a candidate are due, not the election date. Also, persons convicted of a felony in Florida or in a United States District or Territorial Court, or who has been convicted of any offense in another jurisdiction which would be considered a felony if committed in Florida, are not eligible for board membership unless such felon’s civil rights have been restored for at least five years as of the date such person seeks election to the board. If an election is not required, then the association holds a membership meeting, usually the annual meeting, to announce the names of the new board members and if one or more board seats are unfilled.

If there are more eligible candidates, the association proceeds with the election. Between fourteen days and thirty-four days before the election, the association sends a second notice of election to all unit owners. Make sure to check your governing documents for this notice, as although the statutes require a fourteen day notice, your governing documents may require a thirty day notice. The second notice should contain the candidate information sheets and the association may not endorse, disapprove, or comment on a candidate. The second notice should also include the ballot along with the outer envelope addressed to the person authorized to receive the ballots and a smaller inner envelope in which to place the ballot. The outer envelope must indicate the name of the voter, unit for which the vote is cast, and signature space for the voter. After the voter completes the ballot, the voter must place the ballot inside the smaller inner envelope and seal the envelope. Then the voter must place the sealed inner envelope in the outer envelope and seal the outer envelope. The voter then signs the outer envelope and returns it, personally or by mail, to the association. Upon receipt, by the association, the ballot may not be rescinded or changed.

Before the meeting, the association may verify the outer envelope information in advance of the meeting. To verify before the meeting, the association must appoint an impartial committee at a duly noticed board meeting. The impartial committee may not contain current board members or their spouses, officers or their spouses, or candidates for the board or their spouses. The committee must meet the day of the election but before the meeting to check the signature and unit identification on the outer envelope against a list of qualified voters. The voter should then be checked off a list as having voted. If a voting certificate is required, then the committee should check to ensure that the owner has placed a voting certificate on file with the association, and the voting certificate holder has cast the ballot. Unsigned outer envelopes, units that require a voting certificate holder but have not submitted a voting certificate to the association, units where the voting certificate holder did not vote, and units submitting duplicate outer envelopes shall be disregarded. The committee should not open outer envelopes until the actual election meeting.

The association does not want to have to search the county’s official records the night of the election to determine which units require a voting certificate and its designee. For a quicker and smoother election process, the association should indicate on a copy of its roster of owners which units require voting certificates and who is designated as the voting certificate holder.

On the day of the election, the association should transport the envelopes containing the ballots to the location of the election. Also, the association should have blank ballots available for distribution to the eligible voters who have not already voted. Ballots distributed at the meeting shall be placed in the same inner and out envelope system used by persons returning ballots before the election. If an impartial committee has not been previously appointed, the association should appoint such a committee at a board meeting before the annual meeting. The impartial committee will then validate the outer envelopes in the same manner listed above. Once the outer envelope validation is complete, the valid outer envelopes may be opened, which should be done in the presence of the owners. Once the first outer envelope is opened, or accessing the electronic votes, the polls are closed, and no additional ballots may be accepted. The inner envelopes must be opened and counted in the presence of the unit owners. Any inner envelopes containing more than one inner ballot envelope must be disregarded. If a ballot indicates a vote for more candidates than vacancies, the vote is disregarded. A plurality of ballots case decides the election.