Voting in the Digital Age, Part 3
This is the last planned email in our series on electronic communications with owners.
The first two covered electronic notice of meetings to association owners in Washington and Oregon.
We received some excellent feedback in response to those emails.
For example, we know that some Washington Associations use electronic notice for their association meetings if the owner consents to receiving notices in that form.
There are very valid arguments in support of this position, but there’s always the argument that a clear and unambiguous statute should be followed.
Any discussion regarding electronic voting in Washington associations is fairly short. When it comes to matters that are to be voted on by the association members, as opposed to the board of directors, the statute requires a meeting with proper notice that includes the items or business on the agenda to be voted on by the members.
RCW 64.34.332 (Condominium Act) and RCW 64.38.035 (HOA Act).
There are provisions that allow for voting by proxy and the Condominium Act allows for amendment of the declaration by vote or agreement of the requisite percentage of allocated interest, but there is no provision that would allow an electronic vote.
Granted, there is no provision prohibiting such an electronic vote, but when there is a clear and unambiguous statute stating what procedures are allowed, following the statute is always a good way to avoid problems.
In contrast, Oregon association law provides several alternate methods of voting including: absentee ballots, proxies, written ballots in lieu of a meeting, and electronic ballots. ORS 100.425, 100.427 and 100.428 (Condominium Act);
ORS 94.647; 94.660 and 94.661 (Planned Communities).
The Oregon statutes include specific requirements to ensure compliance with quorum and notice requirements, voting deadlines and secret ballot requirements.
It is not as simple as sending out a mass email to all of the owners and tallying responses.
Before taking a vote by mail in Oregon, Associations need to review their governing documents and make sure they can comply with the requirements of ORS Chapter 100 for Condominiums and ORS Chapter 94 for Planned Communities.
It is important to note that neither Washington nor Oregon allow Boards of Directors to vote via electronic ballot.
The Washington HOA Act and Oregon Condominium and Planned Communities Acts include specific open meeting requirements that would prohibit a director vote via email (RCW 64.38.035(2); ORS 94.640(8); ORS 100.420).
While the Washington Condominium Act does not explicitly require open meetings, the Non-profit Corporations Act and Nonprofit Miscellaneous and Mutual Corporations Act require meetings with a quorum in order to transact business.
These acts specify that unless the governing documents state otherwise, directors may participate in a board meeting via any means of communication by which all participants can “hear” each other during the meeting.
RCW 24.06.150 and RCW 24.03.120.
This of course eliminates email as an option for conducting board business, although the Washington Nonprofit and Nonprofit Miscellaneous and Mutual Corporations Acts allows directors to take actions outside of meetings by unanimous consent.
RCW 24.03.465; RCW 24.06.510.
Will (and should) Washington someday join its neighbors to the south and provide Associations with procedures for electronic notice and voting? We’d love to hear your thoughts and feelings on this subject.