Question: Our condominium association intends to conduct a membership vote on a matter without holding a meeting. Many members are interested in voting by e-mail, but do not have equipment to scan a signature. Is there any way around this? (R.F. by e-mail)
Answer: The approval of matters without a meeting is governed by the Florida Not For Profit Corporation Act, Chapter 617 of the Florida Statutes. This law states that unless otherwise provided in the articles of incorporation, action that can or must be taken at a members meeting may be taken without a meeting, without prior notice, and without a vote if the action is approved by a signed consent by the number of members that would have been required had a meeting taken place.
The written consents must be dated, signed and returned within 90 days after the date the earliest dated consent is delivered to the Association. Within 30 days after obtaining the required number of affirmative written consents, a specific notice must be given to those members who are entitled to vote on the action but who have not consented. The association’s bylaws should also be consulted, as they may incorporate an older, stricter version of the “action without meeting” statute.
The statute does not address what constitutes a “signature” on a written consent, nor does it specifically authorize “electronic signatures.” Electronic signatures are only addressed in the Electronic Signature Act of 1996 which deals with commercial transactions and not corporate matters. For commercial transactions, an electronic signature is defined as any letters, characters, or symbols, manifested by electronic or similar means, executed or adopted by a party with an intent to authenticate a writing. However, neither the Division of Condominiums, Timeshares and Mobile Homes nor the courts have specifically authorized the use of electronic signatures in the association context.
If an association wants to collect votes electronically, the better course of action would be to hold a meeting and allow members to vote by internet. The board of directors has the power to implement online voting, but it must do so at an open meeting, with notice of the meeting delivered to all owners not less than 14 days prior to the date of the meeting at which a resolution implementing online voting will be adopted. Once the resolution is adopted, the board may contract with a provider to provide electronic voting services so long as the program meets the minimum requirements set forth in the statute.
As an added benefit, holding a meeting often results in a lower approval threshold on the item being considered. With action by written consent, there is no way to know how many members are “present and voting” when you are receiving consents over a period of time. It is for this reason that you will often see a two-part approval threshold contained in the governing documents. When the vote is taken at a meeting, the approval is based on those present and voting. However, when the vote is conducted by written consent without a meeting, the approval is based on all members of the association. Thus, getting the votes by meeting will be much easier. Of course, your specific governing documents will control.
By the way, the law was also recently amended to permit the use of scanned/emailed proxies, notwithstanding any bylaw provision to the contrary. Coupled with online voting, this should make the conduct of association meetings much easier in the coming years.