As I was preparing to write a new post regarding another emotional support animal court case, I conducted a Board Certification Course that satisfies the educational component required of all newly elected or appointed board members of Florida community associations. During that Board Certification Course, I was discussing that the administration and operation of each community association was the responsibility of the Board of Directors, and that decisions and/or actions of the Association needed to be done through votes of the Board. A question was immediately raised concerning votes by Board members conducted through email. My response was that Board members could not vote on matters by email, and instead had to vote at duly noticed meetings of the Board that were open to the association's membership to attend. At that point, a near riot broke out. It was similar to the scene in the classic movie Frankenstein when the villagers took up their torches and pitchforks to hunt down the monster. That night, unfortunately, I was considered the monster. This issue presents one of the greatest challenges to members of a community association Board of Directors.
As the use of email has expanded in our everyday lives, many Board members, management companies, and community associations believe voting through email is an acceptable business practice for their community associations. I completely understand how this practice has evolved to this point, where Board members are now shocked to learn that conducting business and voting through email cannot be done. It is difficult to imagine communicating in today's society without email. When I started practicing law, almost all of the correspondence I dealt with was through actual, hard copy letters. Emails were infrequent. The requests for work to be performed by my clients came through letters delivered by the U.S. Post Office. Today, almost all of my correspondence with clients, opposing attorneys, and prospective clients is through email exclusively. Therefore, it is easy to see why Board members can be left with the impression that votes through emails, even those votes that may then end up being ratified at an actual Board meeting, would be acceptable.
Due in part to the uncertainty on this issue, the Florida Legislature in 2014 amended a portion of Chapter 718, applicable to condominium associations, to address voting by or through email. Section 718.112(2)(c) of the Florida Statutes (2014) now specifically states that while Board members of a condominium association can communicate by email, those Board members cannot cast a vote on association matters via email. It has become common over the past several legislative sessions in Florida to find amendments containing the same or similar language added or applied "across the board" to all types of community associations, but this clear prohibition on voting by email only appears in Chapter 718 for condominium associations. That prohibition did not find its way into Chapter 719 (cooperatives) or Chapter 720 (homeowners associations). I would expect this to be addressed one way or another in the 2015 legislative session, but that is a topic for another day.
Just because the legislature did not amend Chapter 720 to clearly prohibit members of homeowners association Boards of Directors from voting by email, that does not mean voting by email is still possible. This takes a little bit of deeper analysis of Chapter 617 and Section 720.303 of the Florida Statutes. Most homeowners associations in Florida are not for profit corporations, and as such are governed in part by Chapter 617 of the Florida Statutes, which is Florida's not for profit corporation act. Section 617.0801 of the Florida Statutes provides that in a not for profit corporation all "corporate powers must be exercised by or under the authority of, and the affairs of the corporation managed under the direction of, its board of directors, subject to any limitation" in the corporation's governing documents. This simply means that the corporation's Board of Directors exercises the corporate powers subject to limitations that may be imposed in that corporation's governing documents. For example, certain powers or duties may require a vote of the corporation's membership instead of being carried out by the Board alone.
Section 617.0824 of the Florida Statutes provides in pertinent part that if a quorum of the Board of Directors is present at a meeting when a vote is taken, the affirmative vote of a majority of directors present is the act of the Board of Directors (unless the corporation's governing documents require a higher percentage for an action). There is a provision in Chapter 617 that would allow a Board to act without a meeting, but it must be done through a written consent (similar to a formal resolution), which has been signed by all Board members (in other words, it must be unanimous), and the corporation's governing documents (articles of incorporation and/or bylaws) must not prohibit that process. There is nothing in Chapter 617 that permits voting through email as a replacement for the unanimous written consent in lieu of conducting the vote at a Board meeting. So, almost all corporate action by the Board must be carried out at an actual Board meeting.
Section 720.303(2) of the Florida Statutes provides that a "meeting of the board of directors of an association occurs whenever a quorum of the board gathers to conduct association business. Meetings of the board must be open to all members" (except for meetings between the board and its attorney with respect to proposed or pending litigation where the contents of the discussion would otherwise be governed by the attorney-client privilege). In addition, notices of all board meetings must be posted in a conspicuous place in the community at least 48 hours in advance of a Board meeting (except in the event of an "emergency", and the term "emergency" in this context likely does not mean what most people think it means. The term is not defined in Chapter 720, but an "emergency" in this context likely refers to a state of emergency that has been declared by a governmental authority).
So, combining the provisions of Chapters 617 and 720 for actions by Board members in homeowners associations, corporate action must take place at a Board meeting and a quorum of the Board must be present at that meeting. If a quorum of the Board is present, notice of that Board meeting needed to be given at least 48 hours in advance and the Board meeting must be open to all members of the homeowners association. If Board members are voting through email, there should be several red flags raised. Corporate action (in this case, the voting) is not taking place at an actual meeting of the Board, which has been properly noticed and open to the association's membership to attend. This "virtual" meeting of the Board by conducting votes through email is not currently recognized under Florida law for community associations. The primary issue is that the votes are taking place out of sight of the association's general membership. The most common response I get to that from Board members is that the association has a difficult time getting a quorum of the Board to show up to Board meetings, let alone any participation from the other owners in the community. However, Chapter 720 and Chapter 718 of the Florida Statutes do not have a participation threshold by the association's membership before open Board meeting are required to occur. Board meetings need to be open to the association's membership regardless of how many members actually do show up (unless there is a legal basis to close the board meeting).
In a 2014 court case from the State of Illinois (Palm v. 2800 Lake Shore Drive Condominium Association), one of the issues the court was asked to address was the propriety of the condominium board voting by email. Illinois' law regarding what constitutes a board meeting is very similar to Florida's. The court held that the board of directors had violated the law by conducting votes through email. The court specifically held that, absent the applicability of identified exceptions to the requirement of holding open meetings, "all board discussion, investigating by reason or argument, talking about, presenting in detail for examination and consideration of association matters as well as voting thereon must be conducted in meetings open to the unit owners." The key point there is that votes by the directors must be conducted in meetings that are open to the association's membership. While Illinois court decisions are not binding on Florida courts, the courts in Florida can certainly take into account decisions on similar topics, especially where the applicable laws are virtually identical.
As discussed above, voting by email is not currently permitted for any community association boards of directors in Florida. Any and all votes should be conducted at properly noticed board meetings that are open to the association's membership (unless the board meeting can be closed as permitted by law). If your community association is voting by email, you should discuss this with your community association attorney to determine the proper course of action going forward and any corrective actions that may be necessary as a result.
And now I also know to make certain to pack my suit of armor when the topic of email voting comes up at my next Board Certification Course!
DISCLAIMER: The information and materials on this blog are provided for general informational purposes only and are not intended to be, and should not be used as, legal advice of any kind. Being general in nature, the information provided may not apply to your specific factual and/or legal set of circumstances. No attorney-client relationship is formed nor should any such relationship be implied. Nothing on this blog is intended to substitute for the advice of an attorney. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction. The content is as of the date of the post, and subsequent changes in the law may have occurred.
