The use of email and other forms of electronic communication in the operations of condominium associations continues to be a controversial and confusing topic in Florida. The Florida Statutes are significantly behind the times as it relates to technological advances and, therefore, do not provide any guidance around when, if ever, Board email communication and voting is allowed. Further, these issues have not been sufficiently litigated to have a clear understanding of what Florida courts consider legal behavior.
One the one hand, using no electronic communication in this day and age is completely unreasonable. On the other hand, if a Board chooses to conduct all business electronically, the unit owners are denied their right to be present during Board meetings, which violates the law and leads to unit owner distrust of the Board. Given this, all associations can do is comply with the spirit of the Florida condominium statutes (Chapter 718) and use good judgment when conducting association business via email or other electronic communication. In order to ensure all Board members act consistently, I recommend that each association draft and approve a Board Member Electronic Voting and Communication Policy.
Florida Statute Chapter 718.112(2)(c) is clear that all unit owners have the right to attend any meeting of the Board at which a quorum of the Board is present. This means that any gathering of a quorum of the Board, whether at the standard meeting location, in a Board member’s home, or at a local restaurant, is considered a Board meeting if association-related topics are being discussed. It is a common misconception that in order for a gathering of the Board to be considered an official meeting, the Board has to be voting on something. This is not the case.
There are two notable types of meetings that are not open to unit owners:
1. Meetings between the Board and the association’s attorney to discuss litigation and obtain legal advice
2. Board meetings held for the purpose of discussing personnel matters (e.g., employee issues)
The Statute also states that notice of Board meetings (including date, time and location) along with a meeting agenda must be posted conspicuously around the condominium property at least 48 hours in advance of the meeting. This requirement also applies to the two types of meeting mentioned above that are not open to unit owners.
NOTE: The Statutes are silent regarding where Board meetings may take place. However, the Statutes do specify that the annual meeting must be held within 45 miles of the condominium property so this is a good guideline for all Board meetings.
Based on the above definition of a Board meeting, an email chain or other form of electronic discussion (e.g., a chat room, web-based conference) where association-related items are being discussed by a quorum of the Board would be considered a Board meeting. Notice for this meeting would have to be posted 48 hours in advance and all unit owners would have the right to attend. As this is impossible in the context of a Board member group email, technically any emails between a quorum of the Board are in violation of the Florida Statutes.
NOTE: In theory, the association could set up some type of web-based conference with a login that all unit owners have. So long as the meeting was properly noticed and all unit owners have access, I believe (though there is no case law to support this that I am aware of) this would comply with the Florida Statutes.
So, given the rules just discussed, what is a Board to do? My recommendation is to use electronic communication (e.g., email, group texting) but do so in a responsible and considerate way. Remember, Board meeting rules are established to ensure unit owners may remain up-to-date on association issues. Unit owners are only going to become concerned if they feel their rights are being violated and/ or if the Board is acting secretively or unethically. Given this, when considering a Board Member Electronic Voting and Communication Policy, the Board should worry less about complying with the exact letter of the law and more about ensuring the Board is acting in a way that unit owners would consider appropriate.
NOTE: If a unit owner files a complaint against the association to the Department of Business and Professional Regulation (DBPR) and the DBPR finds the complaint warranted, the association may be fined pursuant to the Florida Administrative Code. Learn more here.
Board Member Electronic Voting and Communication Policy
As association’s policy regarding electronic voting and communication should be reviewed and approved by a quorum of the Board at a properly noticed Board meeting. This gives unit owners the opportunity to provide feedback and helps to protect the Board in the event a unit owner complains about the policy down the road. As I recommend with all policies, the Board should review and re-approve the policy annually (perhaps at the meeting following the annual meeting given the likely presence of new Board members). In my opinion, this policy should include:
1. A requirement that each Board member and the property manager establish an email account for the specific use of association business. The Board member/ property should be required to stop using the account and provide the association access to the account once the Board member/ manager ceases to be involved with the association. Why do this?
- This requirement can prove to be very useful when a Board member or manager leaves. As association business with attorneys, CPAs, maintenance vendors and unit owners is often conducted via email, losing all of those records can be detrimental to the smooth operations of the association.
- Depending on the type of communication, these emails may be considered part of the Official Records of the association and, therefore, the association may be required to keep some of them for up to seven years.
- Knowing that emails may be viewed by future Board members encourages the current Board members/ manager from saying anything via email that they would not want others to read. Comments made via email have hurt associations during litigation when emails were admitted into evidence.
2. A requirement that electronic communications between a quorum of the Board are only to be used as a means to transmit information and not as a discussion forum. For example, a Board member can send an email to the Board providing an update regarding an association project or providing an opinion on an upcoming meeting agenda item (perhaps the Board member won’t be there). These messages should be in FYI format and should not ask the Board to provide feedback. If an informative email from a Board member elicits a back-and-forth discussion, the emails should cease and a Board meeting should be scheduled. There are no restrictions on communications between less than a quorum of the Board.
3. A requirement that no Board voting take place electronically unless there is no other option. For example, the association’s insurance policies are up for renewal in 5 days and the Board’s next meeting is scheduled for tomorrow. At the time of the meeting, the insurance broker was unable to obtain all necessary insurance quotes. Due to scheduling conflicts, a quorum of the Board will not be able to meet again before the policies expire. Once the quotes are received, the Board reviews them and votes via email to renew the current policies.
These types of situations, calling for an electronic vote, arise from time to time and the association’s Board Member Electronic Voting and Communication Policy should outline how to proceed during and after the electronic vote. Here are some general guidelines regarding electronic voting:
1. Robert’s Rules of Order should be followed as best as possible:
- A Board member should send an email with a motion to the Board
- Another member should second the motion in an email to the Board and ask “All in Favor?”
- All Board members should respond to the Board with a “yes” or a “no” vote
2. The vote should be included on the agenda for the next Board meeting and ratified
3. The minutes should provide an explanation as to why the vote was cast via email and a copy of the email chain showing the Board’s vote should be included with the minutes.
NOTE: You may have heard that Boards are allowed to vote via email so long as the vote is unanimous. This relates to non-profit law (Florida Statutes Chapter 617), which allows for voting outside of a Board meeting if all Board members vote unanimously in writing. Whether this Statute allows for written votes via email (as opposed to a signed document) is unclear. Regardless, for condominium associations the Florida Condominium Statutes (Chapter 718) overrule Chapter 617 when there is a conflict and Chapter 718 does not allow Boards to avoid a meeting by voting unanimously in writing.
I hope this overview of electronic Board communication has been helpful. Our management and consulting firm, VERA Property Management, will gladly draft a Board Member Email Voting and Communication Policy for your association. Please contact us today for a quote.
As always, feel free to reach out with questions or comments.
Emily
Emily Shaw is a condominium homeowner in Tampa, Florida and a Director of VERA Property Management, a firm providing full-service community association management in the Tampa Bay Area as well as consulting, financial and legal services to all Florida community associations.
