The line between what an association’s board can legally do as a matter of law and what the board should do as a matter of good practice and policy is often blurred without any practical guidance available for well-intentioned directors who want to do the very best they can for their community based upon very often limited information available prior to taking a vote.
As the duly elected “representative body” of the association, one of the most important functions of the board is its authority and ability to make timely decisions on various routine issues affecting the association without requiring the time and effort involved to obtain a full vote of the association’s membership. For example, decisions such as the hiring of a CPA to review the association’s finances or the employment of a management company are usually left to the board’s discretion without the need to obtain any pre-approval from any percentage of owners in the community.
Despite the board’s general and broad authority in handling the everyday operations of the association, there are certain matters for which a membership vote and approval must be obtained prior to the board taking an action on behalf of the association. These often include matters such as proposals to amend the association’s governing documents. Under these circumstances some percentage of membership approval is required before the board has the authority to make a binding decision on behalf of the association.
There are some specific instances, however, where a board’s authority to act without a membership vote is clear according to the association’s governing documents and Florida Law; yet the board is understandably reluctant to take an action without first knowing and considering the concerns and input of the members.
In these scenarios, it may be helpful for the board to conduct a voluntary, nonbinding poll or survey of the membership prior to the board meeting to consider and vote on the contract. Although not required by law, the information obtained from the poll would allow the board to make a more informed decision less likely to challenge to the extent that members feel their voice and input is being heard and seriously considered by the directors prior to the decision. It may also allow the board to avoid entering into a contract which the membership may ultimately vote to cancel anyway at the next regular or special membership meeting.
Of course, the problem with this type of survey is that it potentially creates the reliance or expectation among the membership that the board must vote in a way that reflects the results of the poll. To avoid this, a board using a poll or survey should make it clear and explicit in the information provided to the members that the poll is a welcome invitation for membership input but is also voluntary and non-binding on the board’s ultimate decision regarding the issue.
Be sure to contact your association’s attorney to further consider the potential use, advantages and disadvantages of a voluntary membership poll in your community. If using such an informal poll would be helpful for your association, BeckerBallot provides this tool as part of its annual subscription.
To read the original CAI Community Voice article, please click here.
Shayla J. Mount focuses her legal practice on providing counsel and representation to homeowner and condominium associations throughout Central Florida. An experienced litigator, she has also served as general legal counsel for numerous homeowner and condominium association boards throughout Orange, Osceola, Seminole, Duval, and Sarasota Counties. To learn more about Shayla, please click here.