Electronic Voting and Notification: Is It Worth a Try For Your Association
By: Michael Polulak, Esq.
Does your association have an upcoming annual election or special meeting If so, how do you plan on reaching quorum Multiple notices may need to be sent to the members and board members may need to go door to door to solicit ballots. Even if this is done, there is still a strong possibility that quorum will not be met and the meeting will be adjourned'Ĥonly to go through the process again.
For many associations, this scenario sounds all too familiar. Community participation is an ongoing concern for many community associations. In today's high-tech internet age, one may wonder why association members do not participate in their community from their home or work computers. It certainly makes sense to vote online for an upcoming board member election or a special meeting. So the question remains- why is electronic voting not used in every association today The answer is that there may be some impediments preventing an association from easily adapting online voting and notification.
To begin, there are two facets to association voting which need to be separately considered. The first is proper membership notification of the meeting. This requires strict compliance with the applicable statues as well as with the association's governing documents. Once the membership has been properly notified, then the board must provide means for the members to submit an absentee ballot and/or proxy to vote at the election.
First Step: Proper Notification
Written notification of meetings to the membership is a necessary and possibly expensive endeavor. Depending on the size of your association, the costs involved in printing, mailing, and postage can quickly add up. Therefore, it may be an attractive alternative for an association to notify its membership of an upcoming election or special meeting only through the use of electronic notification, such as email.
While using solely electronic notification may save the association a substantial amount of time and expense, there are some statutory restrictions which must first be considered. First, the New Jersey Nonprofit Corporation Act (the 'Nonprofit Act'), Section 15A:5-4(a), requires that 'written notice of the time, place and purposes of every meeting of members shall be given not less than 10 nor more than 60 days before the date of the meeting, either personally or by mail, to each member of record entitled to vote at the meeting.' This language, when interpreted conservatively, requires notice to be made either personally or by the U.S. Postal Service (mail). This strict interpretation effectively prevents community associations from using only online notification. However, a more liberal interpretation of the word 'mail' may include electronic mail (email). It is evident that email is a predominant means of communication for many individuals today - in many cases even more so than the U.S. Postal Service. This, however, does not guarantee that a court will uphold such an interpretation.
Secondly, the language of the New Jersey Condominium Act (the 'Condo Act') must be considered. Here, the Condo Act does not impede an association that chooses to use only electronic notification. Instead of providing strict guidelines, N.J.S.A. § 46:8B-13(a) defers to the association's bylaws to provide notification requirements. Therefore, the board must consider the language of its governing documents.
Due to the fact that association governing documents differ greatly among associations, it is necessary for the association's attorney to carefully review the governing documents to determine what is and what is not permitted. Some governing documents specifically require notice to be sent by U.S. Postal Service. Others require 'written' notification or notification via 'mail.' These terms, of course, are subject to interpretation. If your association's governing documents clearly do not permit the use of only electronic notification, then the association must amend its governing documents accordingly.
Of course, an association may always use electronic notification as a supplement to traditional notification. Obviously, doing so will not save the association any time or expense. It will, however, provide additional notice to the membership which may ultimately help the association to reach quorum at an upcoming meeting.
Step 2: Submitting a Ballot
Once the board has provided its members with appropriate notification of the election meeting or special meeting, the next step is for the board to provide a means for its members to vote. Traditionally this is done via absentee ballots, proxy votes, and voting in person at the meeting. However, oftentimes absentee ballots and proxies are discarded, forgotten, or misplaced and it is frequently difficult for members to attend the meetings. Therefore, a possible solution may be to provide members with the option of voting electronically.
Before doing so, the board must again consider possible statutory restrictions. Here, both the Nonprofit Act, § 15A:5-18 and the Condo Act, § 46:8B-13(b) defer the voting requirements to the association's bylaws. Therefore, the board must carefully review the language of its governing documents to determine whether or not it is permissible for members to submit ballots online.
The association's bylaws may provide that ballots must be 'in writing' and 'signed by individual members, or by their duly authorized representative.' These terms have not yet been interpreted by the New Jersey courts with regard to electronic voting and are again subject to the same type of conservative and liberal interpretations previously discussed. Once more, the board or its attorney must use its reasonable judgment to interpret this language in the governing documents.
If a board determines that it is permitted to proceed with electronic voting, then it must contract with a third party vender to set up the electronic voting process. There are online voting companies that cater specifically to community associations. A brief search online will provide you with a list of these companies. The extent and quality of the services provided vary, as do their prices. Some companies charge a setup fee or an annual fee, while others charge fees per election- either per vote or via flat fee. Most companies require that a board member or property manager create a ballot for the election as well as upload a list of all of the potential voters. Many services provide the opportunity to upload information about the meeting as well as biographies for each candidate. It is the board's responsibility to ensure that the chosen company is reputable, the website is secure, and that the voting procedure is properly administered. The board should review different companies and packages available to determine which price and services best fit the association's needs.
Once set up with an online voting company, the board must notify the membership that online voting will be provided. The board should send information to each member pertaining to its online voting procedure, the website name, each member's unique username, etc.
Online Voting: Required or Optional
If the association would like to use online voting in lieu of sending absentee ballots and/or proxies to the members, then each member should execute a written waiver stating that he or she waives any right to receive an absentee ballot and/or proxy via personal or U.S. Postal Service. This will likely preempt the member from challenging the validity of the vote at a later date. It is also important to do this because governing documents generally state, in one form or another, that each member of the association shall be entitled to one vote. Requiring members to vote online without executing a waiver will likely disenfranchise some members from voting. Disenfranchising members is contrary to the law and to the spirit of the voting process.
Alternatively, the board may decide to use online voting as an option for the association's members. Doing so would avoid the need to have the members execute a written waiver and it would also avoid the possibility of disenfranchising its members. Regardless of whether the board decides to provide online voting as an option or in lieu of providing absentee ballots and/or proxies, the opportunity to vote in-person at the meeting should always be preserved.
In sum, electronic notification and voting may be a viable option for your association. The board and the association's attorney should carefully review your association's governing documents to determine whether online voting is permissible. If it is permissible, the association may ultimately realize a cost savings over time. Also, permitting online voting will possibly assist your association with the age old problem of reaching quorum.
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