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Board Members Can’t Vote By Proxy

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Q: I have an HOA question about board members voting by proxy. I believe that they cannot submit their own personal vote via proxy, but are they allowed to simply collect unlimited proxies? The board members collect and give the proxies to one board member to distribute. Is this legal? (E.L., via e-mail)

A: You have to distinguish between board meetings and membership meetings. Section 720.303(2)(c)3. of the Florida Homeowners’ Association Act specifically states that directors may not vote by proxy or by secret ballot at board meetings, except that secret ballots may be used in the election of officers.

As to membership voting, the law provides that unless otherwise provided in the governing documents, members have the right to vote in person or by proxy. Unless the governing documents require a secret balloting process, members generally have the right to vote by proxy for matters that come before a membership meeting, including the election of directors.

You are referring to what is sometimes called “proxy hoarding,” where one candidate (including incumbent board members) requests other members to assign the proxy to them in order to get elected or re-elected. Such may appear unseemly, but absent a restriction in your governing documents, such action would be allowed.

Q: At the annual meeting for my condominium association, the winners of the election of directors were announced, but not the vote totals for each candidate. Is the association required to announce the vote totals? (M.G., via e-mail)

A: No. I usually discourage it so as to not embarrass the losing candidates, but it is legal to announce the vote totals as well.

The law states that the board is elected by a “plurality of the votes cast,” meaning that the candidates who receive the most win, even if not a majority of the votes cast. Regardless of how the results are announced, I believe that the minutes of the meeting should reflect the vote totals.

Additionally, the voting materials, including the ballots and tally sheets are official records of the association, and available for inspection by any owner, upon written request. If someone at the meeting really wants to know the totals, I show them the tally sheet.

Q: Is the board of directors of a homeowners’ association permitted to have a closed meeting to discuss personnel issues, and must the association’s attorney attend that meeting? (E.R., via e-mail)

A: Chapter 720 of the Florida Statutes, the Florida Homeowners’ Association Act, addresses when a board can hold closed meetings, which owners are not permitted to attend. For example, an association may hold a closed meeting to discuss personnel matters. If the members of the board of directors is meeting to discuss “personnel” matters, it is not necessary to have the association’s attorney present for the meeting to be closed to the membership.

The law is basically the same for condominiums and cooperatives. The only other exception to the open meeting requirements of the law are meetings with association legal counsel regarding certain legal matters.

Q:  My condominium association originally mailed and posted notice of the 2021 budget meeting 14 days in advance. However, the morning of the 2021 budget meeting, the members received an e-mail from the management company stating that there was a mailing error and the proposed budget provided previously was incorrect. The e-mail then included the corrected 2021 budget. Should they have postponed and re-noticed the budget meeting? (J.B., via e-mail)

A: Close call and dependent on the facts. As you note, the law requires notice of budget meetings to be mailed, delivered or sent by e-mail (when the owner has consented to receive official notices by e-mail) at least 14 days in advance. The fact that the budget included with the notice is only “proposed” means that it can be changed by the board at the meeting where it is adopted.

If the deviations are significant and depending on the scope of the errors, a “do-over” may be the more appropriate legal procedure.

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