Q: Our current documents say that proxy votes are allowed in an election, yet during our recent elections, residents were told that proxies were not allowed. My question is whether this was legal? (K.T., via e-mail)
A: It depends.
Section 718.112(2)(b)2 of the Florida Condominium Act provides that proxies may not be used in the election of directors. Rather, the law requires a system where owners can put their name into nomination before the meeting, and if there are enough candidates for a contested election, ballots are sent out. The ballots must be secret (unlike a proxy, which must be signed) and returned in an unmarked envelope (the “ballot envelope”) which is placed in an envelope that is signed and contains unit identification information (the “outer envelope”). At the annual meeting, the outer envelopes are verified and then the ballot envelopes are placed into a separate pile, where they can then be opened and tallied, ensuring a fair election. The statute does allow condominiums of 10 units or less to “opt out” of this procedure, it is mandatory for all other condominium associations.
Conversely, Section 720.306(9)(a) of the Florida Homeowners Association Act simply states that elections shall be conducted as provided in the governing documents of the association, typically the bylaws. There is no prohibition in the statute against the use of proxy voting in HOA elections, although I believe that the bylaws can (and in my view probably should) adopt a “condo style” election process.
Q: I asked my condo association for a breakdown of the budget payroll line to see what our maintenance, office and manager are paid. I was told I could not know their individual salaries based on Florida condo law regarding personnel files. Is this correct or am I entitled to know how much my maintenance fees pay them? (B.R., via e-mail)
A: Section 718.111(12)(c)3.c of the Florida Condominium Act addresses this issue. The statute states that “personnel” records, including “payroll” records are protected documents and not available for owner inspection. The statute goes on to say that the exclusion does not include “written employment agreements with an association employee or management company, or budgetary or financial records that indicate the compensation paid to an association employee.”
These two provisions are inherently difficult to reconcile. Owners are clearly entitled to “budgetary” information regarding employee salaries, which you state you have seen, presumably conglomerated together. Conversely, owners are clearly not entitled to “payroll” information. Whether there are “financial records” that do not fall into either of the previous categories, yet would be open for inspection, probably depends on how an individual association keeps its financial records.
The policy issue is whether owners have the right to know how much individual association employees are paid. There are meritorious arguments on both sides of the ledger. Owners can rightfully assert the argument you have made. Conversely, associations and employees (or potential employees) can argue that the potential “politicization” of employee salaries can have a deleterious effect on attracting and keeping good employees. It would be helpful if the Legislature picked one side or the other and put some clearer guidance in the statute.
Q: My condominium association is considering changing the color of our buildings. Is this a material change that requires a 75% vote to approve? (A.O., via e-mail)
A: Color changes are usually a “material alteration.” Whether and what kind of owner vote is required will be dictated by your declaration of condominium.
Section 718.113(2)(a) of the Florida Condominium Act provides that materials alterations or substantial additions must be approved in the manner provided in the declaration. If the declaration does not provide a procedure for approving material alterations or substantial additions, then a 75% vote of the total voting interest of the association must approve.
Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.