Becker & Poliakoff

“Difficulty with Community Participation?” – FCAP Managers Report

“Difficulty with Community Participation?” – FCAP Managers Report

In many communities, voter apathy can be a real issue with members not turning in proxies and not attending meetings.  This does not only impact elections, but also other membership votes, such as amending the governing documents and voting on material alterations.  Simplifying the voting process for owners can go a long way in remedying this problem.  One way to simplify the voting process for members is for the board of directors to authorize and set up electronic voting. This is especially true for communities with a lot of seasonal or part-time residents.  Many communities, however, have not taken advantage of this option even though electronic voting is a beneficial tool to encourage participation by members.

In authorizing electronic voting, the Legislature set forth several statutory requirements for setting up such a system, which are discussed below.  As always with statutory requirements, it is important to discuss with association counsel to ensure that your community correctly implements its online voting system.  First, the board must approve electronic voting as discussed further below.  Next, a unit owner must consent in writing to online voting.  This consent is distinct from a unit owner’s consent to receiving certain notices by electronic transmission.  However, for administrative ease and efficiency, association counsel can prepare a form for your community on which owners have the option to consent to either or to both receiving notices by e-mail and to online voting together.  An owner whose consent to electronic voting may also opt out later.     

In addition to the consent form, the association should have association counsel prepare the board resolution authorizing the online voting system as the statute contains several requirements for this resolution.  The board resolution must provide that unit owners receive notice of the opportunity to vote through an online voting system, must establish reasonable procedures and deadlines for unit owners to consent, in writing, to online voting, and must establish reasonable procedures and deadlines for unit owners to opt out of online voting after giving consent. Written notice of a meeting at which the resolution will be considered must be mailed, delivered, or electronically transmitted to the unit owners and posted conspicuously on the condominium property or association property at least 14 days before the meeting. Evidence of compliance with the 14-day notice requirement must be made by an affidavit executed by the person providing the notice and filed with the official records of the association.

The statute dictates several requirements for the association to set up online voting.  The association must provide each unit owner for a method to authenticate the unit owner’s identity to the online voting system and a method to confirm that the unit owner’s electronic device can successfully communicate with the online voting system.  The method to confirm that the unit owner’s device will be able to communicate with the system must be available at least fourteen days before the voting deadline.  The online system must also be able to authenticate the unit owner’s identity and to authenticate the validity of each electronic vote to ensure that the vote is not altered in transit.  The system needs to also be able to transmit a receipt to each unit owner who casts his or her electronic vote.

In addition to the above, for elections of the board of directors of the association, the association must also provide a method to transmit the electronic ballot to the online voting system that ensures the secrecy and integrity of the ballot.  They system must also be able to permanently separate any authentication or identifying information from the electronic election ballot.  This is so that it is impossible to tie an election ballot to a specific unit owner.  The system needs to be able to store and keep electronic votes as accessible to election officials in the event that a recount, inspection, and/or review is required.

Prior to any membership vote taken at a meeting, except for the election of board directors, a specific quorum must be reached.  The statute provides that a unit owner voting electronically is counted as being in attendance at the meeting for purposes of determining a quorum.  Thus, setting up electronic voting and having owners consent to using electronic voting helps the association achieve quorum and required approvals by making it easier for owners to be “present” and to vote.

Another option for participation issues is to amend the governing documents to lower the voting threshold required for approvals.  One way that is particularly effective is to change the threshold required from a percentage of the entire membership of the community to a percentage of those who vote.  Otherwise, all members who do not vote are essentially casting a “no” vote.  Lowering the quorum requirement can also be effective.  Association counsel can review your current requirements and discuss where improvements might be made that would make membership approvals easier to obtain

To read the original FCAP article, please click here.

Karyan San Martano is a member of Becker’s Community Association practice and regularly provides legal counseling to the officers and directors, as well as the property manager, on the operation of condominiums, cooperatives, and homeowners associations.