Thursday January 12, 2023

Electronic Voting: Can an HOA Board Vote By Email?

Electronic Voting: Can an HOA Board Vote By Email? Does your community have the option to participate in electronic voting? Can an HOA board vote by email? As more states and provinces adopt new statutes, board members are considering making this possibility a reality for their associations. If permitted where you reside – could digital ballots be the answer for easy and convenient election participation by homeowners?

The answer isn’t as simple as it may seem.

“There are a lot of legal nuances,” says David Diestel, CEO at FirstService Residential, “so it’s a complicated issue.” For this reason, he urges boards to consult with their legal counsel before making any decision about bringing online voting (or “e-voting”) to their association. “You always need to talk to your attorney on this topic, so you understand the implications and the pros and cons for your community,” he explains. “The decision needs to be made thoughtfully; it shouldn’t be taken lightly.”

Voting rules, bylaws, and logistics are the main factors that make e-voting a complex topic. As a result, many boards aren’t ready to introduce it to their association. Maureen Connolly, vice president at FirstService Residential, has seen this firsthand. “I still only have 12 associations out of 256 that are using it,” she says.

Can an HOA board vote by email?

An HOA’s board of directors is generally prohibited from conducting a board meeting “via a series of electronic transmissions, including but not limited to electronic mail.” (Civ. Code § 4910(b).) Recent legislation across multiple states has taken it a step further to prohibit board members from taking any action via email. In California and Florida, HOA board members cannot vote on an association matter via email, as stated in the California Open Meeting Act and Florida Statute 723.078(3).

However, while voting via email is prohibited, that doesn’t mean there is no opportunity for electronic voting. New voting software offers communities new avenues to securely collect and record board member and community member votes to facilitate quorum and meeting requirements.

Why would your community association want to allow e-voting

One of the primary benefits of e-voting is that it increases the likelihood that homeowners will vote. “It’s a way to enable more members to participate,” Connolly points out, “especially people who travel a lot. They like the ability to vote from wherever they are.” Diestel also sees this as one of the advantages of e-voting. “It could be very effective for things that require a super-majority of votes to pass,” he says.

Another advantage is that electronic ballots can be tabulated more quickly and accurately than paper ballots. “The tallies are done automatically,” says Connolly, “therefore eliminating the potential for human error.” Electronic voting systems also have built-in safeguards to ensure voter confidentiality and prevent election tampering. “The chance for fraudulent ballots is probably lower with electronic voting,” Diestel admits. In states or provinces that allow homeowners to forego paper ballots altogether, e-voting can even lower an association’s costs by reducing its use of paper, postage, and other mailing supplies.

What’s the downside of e-voting?

Owners who vote electronically without attending meetings may not be familiar enough with the issues or candidates on the ballot. “If owners aren’t educated about what they are voting on, you don’t always get the vote that is best for the association,” notes Diestel. “That is something we’ve seen happen at some associations, and you need to be mindful of it.” To help address this concern, he recommends having board candidates provide write-ups about themselves that can be sent out via email to homeowners. For votes on specific items, the board can send out background information that explains why it is being presented for a vote.

E-voting can be a great tool to ensure that no one votes twice. However, it's not foolproof, as it cannot prevent someone from voting electronically and manually. To provide the most secure and accurate election results on voting night, Diestel recommends proactively establishing a process for both electronic and manual ballots -- ensuring everyone has their voice heard fairly.

You’ve decided to allow e-voting – now what?

After discussing the implications with your legal counsel, carefully evaluating the pros and cons, and inviting feedback from homeowners, your board is ready to bring e-voting to your association. What’s next? Although the laws regarding community associations and e-voting vary, there are some general guidelines your board should follow if you are considering e-voting in your community:

Check Your Governing Documents

Ensure that your organization is up to date with its bylaws; confirm whether electronic voting is permissible and if any restrictions apply.
Craft A Resolution

Ensure your association complies with state/provincial statutes and bylaws - craft a comprehensive resolution alongside your association’s legal counsel. Your tailored solution should address procedures for e-voting, how homeowners may opt in or out of these processes, and any other essential topics to ensure compliance.
Send Out Notices To Homeowners

When considering a new policy or procedure, it is crucial to send out a notice to all homeowners informing them of the board meeting at which the resolution will be considered. Be sure to follow any legal requirements. (For example, Florida requires that notices be sent 14 days before the meeting.)
Adopt The Resolution

Assuming you obtain the requisite number of favorable votes at your board meeting, your board may now have the authority to implement electronic voting in your community. However, your governing documents or the statutes in your state or province may require that you put the resolution up for a vote of the homeowners. In some cases (such as in Ontario), you may need to pass a bylaw by a majority vote of homeowners to adopt e-voting.
Evaluate Different Online Voting Systems

Once e-voting has been approved by the board of directors and the majority of homeowners (if applicable), you may begin searching for an online voting system for your community. Ensure you select one that adheres to all legal requirements in your area, meets your association’s needs, and offers ease of use for your community’s voters. A good property management company will understand the needs of your community and be able to help guide your board toward the options that are the best fit.

Active involvement by homeowners is crucial to the success of a community, and e-voting is one way to make it easier for owners to get involved. Nevertheless, e-voting may not be suitable for every association. Be sure to conduct your due diligence and consult your association counsel before making any decisions.