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Virtual Voting Is At Your Fingertips

Eric R. McLennan, November 9, 2020

Vir-tu-al, adjective. Definition: carried out, accessed, or stored by means of a computer, especially over a network.

By necessity, the COVID-19 pandemic has caused board members and managers to get creative with regard to how meetings are conducted. Online or “virtual” meetings via any number of available platforms, including Zoom, Skype, and Microsoft Teams, are becoming relatively commonplace for associations at this point. No doubt, you should give yourselves some credit for being able to adapt quickly and keep the business of your association relatively on track given the challenging circumstances.

However, as we rapidly approach the annual meetings season, those who are in charge of community associations are beginning to have questions about the logistics of voting and conducting elections virtually. Certain non-essential association functions may have been able to be postponed or addressed by other means, but such things as budget approval and the election of new board members are crucial to the successful operation of an association. Fret not! You have options.

When figuring out the process and methods for conducting these meetings at which voting may be necessary, there are a number of important factors for associations to consider.

The Colorado Common Interest Ownership Act (“CCIOA”) has no specific provisions regarding online, virtual, telephonic or any other type of electronic meetings; however, the Colorado Revised Nonprofit Corporation Act (“Nonprofit Act”), specifically provides that “…unless otherwise provided in the bylaws, any or all of the members may participate in an annual, regular, or special meeting of the member by, or the meeting may be conducted through the use of, any means of communication by which all persons participating in the meeting may hear each other during the meeting…” (Emphasis added.) There is virtually the same language in the corresponding sections on board meetings.

Even with the flexibility provided in the Nonprofit Act (with regard to electronic meetings), an association must be careful to make full use of this flexibility while still complying with applicable provisions of its governing documents and CCIOA. Specifically, associations should take a look at the following:

• Review the association’s existing bylaws and conduct of meetings policy. There may be some very specific provisions regarding the method and means of conducting meetings and votes. Is there enough flexibility built into these documents already? If not, and if time allows, consider revising these policies and even amending the applicable bylaws sections to allow for alternative meeting methods.

• Keep in mind that all owners and board members should have an ease of access to the meeting. Most virtual meeting platforms allow participants to join via the internet or through a separate, dedicated phone number (as some members may not have access to the internet). Reasonable accommodations should be granted to those who request it.

• All owners and board members must have the ability to appropriately participate in the meeting. Some platforms allow written questions or include “chat” functions that can be used to great effect. Boards are advised to be judicious with their use of the mute function, keeping in mind that owner input and discussion is an important aspect of having successful and inclusive meetings.

When it comes to voting, provisions will have to be made not only for casting and counting votes, but also allowing for proxies and secret balloting where required. Several online voting service providers are familiar with the special needs of associations. They provide options such as voting live during the online meeting or separate confidential voting after logging in to a website. The service provider will typically tabulate the votes and provide reports for the association’s records. Check out https://www.votehoanow.com/ and https://www.surveyandballotsystems.com/. I’ve also seen several associations successfully conduct a vote to approve document amendments with virtual written ballots via the Docusign platform.

Note that in some cases an actual formal vote may not even be necessary. With budget approvals, check your association’s governing documents. In many cases, an actual vote to approve the budget is not necessary. If your governing documents follow the ratification standards set forth in CCIOA, it would be necessary to have at least a majority of all association members in attendance at the meeting for it to even be necessary to conduct a vote. This level of attendance at the budget meeting or annual meeting is often not achieved. During annual meetings, if there are an equal number of available board seats and candidates, election by acclamation is possibility. Thus, the need for a formal vote is obviated.

If these last few months have taught us anything, it may be that keeping an open mind and remaining nimble are keys to navigating the ever-changing way that our lives are conducted. Further, when things do return to “normal”, it may be quite a different version of “normal” than we were previously used to. What we are learning today with regard to the logistics of conducting association meetings and voting via a virtual platform may very well be beneficial even in a post-COVID world. The difficulty that some associations have had with member involvement and consistent attendance at meetings might well be alleviated if easy and reliable virtual options are provided going forward.

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