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Electronic Voting: Changes Made to Proposed Rules by the DBPR

In previous a blog, we discussed electronic voting and how it provides community associations with the opportunity to work in the digital space. Doing so makes the election process easier, less cumbersome, and easier to detect flaws. Since our last blog addressing electronic voting rules and guidelines proposed by the Department of Business and Professional Regulations, there have been revisions to those rules. The revisions read as follows:

61B-23.00211 & 61B-75.0050 Electronic Voting.

(1) through (2) No change.
(3) The board resolution required by Section 718.128(4), F.S. [719.129(4), F.S.], must provide that:
(a) Aall unit owners receive notice of the opportunity to vote through an online voting system prior to each election or other unit owner vote in which when the association authorizes utilizes online voting.; and The opportunity to vote online must be included in the notice of the meeting requiring the vote.
(b) The deadline to consent, in writing, to online voting must be no less than 14 days before the election or other unit owner vote in which the association authorizes online voting.
(4) through (6) No change.

Prior to this change, notice of the opportunity to vote online had to be received by the unit owners prior to each election or other unit owner vote; this is the part that has been removed, resulting in a “pre-notice” requirement about the right to electronically vote (formerly subsection 3B). Those who sent out electronic voting notices up to 14 days in advance are no longer bound to this specific timeline, rather, the Rule provides that the notice of any meeting involving electronic voting must state the right to do so. This statute allows the board’s resolution to establish a cutoff date for e-voting, but there is room for community associations to choose how or when this will work moving forward.

In a previous blog, we discussed the fact that condominium associations utilizing electronic voting for elections must also disclose a deadline for a unit owner to consent to online voting, and include a notice of debts for any unit owner who is delinquent in payments to the association.  The notice of debt requirement has been removed from Rule 61B-23.0021, and is no longer a necessary part of the process.

In addition to the aforementioned rule change, an important element of Rule 61B-23.0021 that has been modified involves a ballot that includes the name of any ineligible person. It reads:

the association shall mail, transmit, or deliver an amended second notice which shall explain the need for the amended notice, and include a revised ballot with the names of only the eligible persons. If an amended second notice cannot be timely mailed, transmitted, or delivered, then the association must re-notice and reschedule the election following the procedures set forth in subsection (8) of the rule. If the election has already occurred, the election is deemed void and the association must re-notice the election following the procedures as set forth in subsection (8) of this rule.

Under the current rule this does not apply to a ballot that includes the name of any ineligible person who became ineligible after deadline for filing a notice of intent to be a candidate, which in turn limits the amount of second notices that need to be mailed, transmitted, or otherwise delivered to someone who was previously included in this group of people.

Some features have remained the same, such as the fact that condominium associations must ensure the votes are not available to the association prior to the scheduled election. Failure to comply with this renders the election void. Strict records must continue to be kept, including vote receipts including the vote cast, date, time, and user identification; a record the association must keep for one year identifying these same elements, authentication of the unit owner’s identification, and for board elections, removal of all identifying information from the ballot ensuring owner anonymity.

As predicted, the language and implementation of these regulations are always evolving. The regulations might be strict and ever changing, but staying aware and open to the road ahead is vital. We will continue keeping Florida community associations updated and informed of any changes.

Posted in Arias Bosinger, Community Association
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