On February 2, 2022, the Appeals Court issued a noteworthy decision providing that the use of electronic voting did not violate a condominium’s bylaws by permitting unit owners to cast votes remotely in advance of the annual meeting even though the bylaws did not expressly authorize the practice.
Gutierrez makes clear that even if a condominium’s governing documents do not expressly authorize the use of electronic voting, the practice may nonetheless be an acceptable voting method, especially where the bylaws empower the board with the discretionary authority to take action that is necessary and proper for the sound management of the condominium.
The case – Connie Gutierrez v. Board of Managers of Flagship Wharf Condominium, Appeals Court No. 21-P-100 (Feb. 2, 2022) - involves the Flagship Wharf Condominium, a 203 unit mixed-use condominium in the Charlestown Navy Yard. Beginning in 2019, the condominium board of managers (“Board”) decided to use online voting and electronic ballots in place of paper ballots which had been previously used for elections. To facilitate the election, one week prior to the annual meeting the Board provided each unit owner with a link to an electronic ballot for his or her unit. Unit owners were still able to vote through a general proxy and were required to direct their proxy designations to the property manager. The Board set a deadline of noon on the date of the annual meeting for revocation of any existing proxy designation. Of note, unit owners retained the right to vote in person at the annual meeting, but most unit owners cast their votes electronically in advance of the meeting.
After failing in her bid to join the Board, Connie Gutierrez, a residential unit owner, initiated a declaratory judgment action in Suffolk Superior Court seeking declarations that (1) she had a right under both the bylaws and the Massachusetts Condominium Act to review certain election documents, including the individual ballots cast in the 2019 election; (2) the 2019 election was void because electronic voting was not permitted under the bylaws; and (3) even if electronic voting was permissible, it was not carried out in accordance with the bylaws. The Board counterclaimed seeking declaratory judgment that the 2019 election conformed with the bylaws and custom and practice of the condominium. On cross motions for summary judgment, the judge ruled against Gutierrez and in favor of the Board. Gutierrez appealed the decision.
On appeal, the Appeals Court considered whether the manner in which the 2019 election was held violated the bylaws. Gutierrez argued that the 2019 election violated the bylaws in three material ways: “(1) by allowing unit owners to vote in advance of the annual meeting; (2) in directing that unit owners’ proxy designations be made to the property manager, and not the board’s clerk; and (3) by limiting the unit owners’ ability to revoke their proxy designations ‘at any time.’” Gutierrez, at * 10.
The bylaws provided that an “annual meeting of unit owners shall be held and that at such meetings there shall be elected, by ballot of the unit owners, a board in accordance with article 2 of these by-laws.” (internal citations and notations omitted). The bylaws further provided that
The owner or owners of each unit, or some person (who need not be an owner) designated by such owner or owners to act as proxy on his, her or their behalf, shall be entitled to cast the vote appurtenant to such unit at all meetings of unit owners. The designation of any such proxy shall be made in writing to the clerk, and shall be revocable at any time by written notice to the clerk by the unit owner or owners so designating. Any or all of such unit owners may present at any meeting of the unit owners and . . . may vote or take any other action in person or by proxy.
Although the bylaws did not specifically permit voting in advance of the annual meeting, the court found that the bylaws permitted voting at the annual meeting, but did not require it. In reaching its decision, the court reasoned that
both the general purpose of the bylaws - - ensuring proper and orderly management of the condominium - - and the circumstances existing at the time of their enactment - - the drafters’ intent to provide the board with the discretion to adapt its management decisions to the needs of the condominium community - - militate in favor of a broad interpretation, allowing the board to adapt voting procedures to the condominium’s evolving needs.
Gutierrez, at *15. The court pointed out that “the bylaws were silent about many of the details of how unit owners could exercise their entitlement to vote, including the type of ballot to be used, the candidates’ eligibility qualifications, the form of the proxy and ballot, the permissibility of absentee ballots, the identity of the person or entity permitted to count ballots, or the methods for resolving ties or other election disputes.” Id. at *13. The court opined that “the bylaws created a sketch, rather than a blueprint, for managing board elections, leaving the board to determine the best method for conducting those elections.” Id.
The court concluded that “the board’s decision to allow unit owners to vote through the online process and in advance of the annual meeting was permitted under the bylaws and was within the board’s authority.” Id. at *16. The court also found, however, that Gutierrez was entitled to a declaration that the Board violated the bylaws in the 2019 election by directing proxy designations to the property manager and not the clerk and by limiting unit owners’ ability to revoke their proxy designations before the commencement of the annual meeting. The court found that “both the requirement that the proxy designations be made before the commencement of the meeting, without the opportunity to revoke them before the election, and direction of proxy designations to someone other than the clerk did not comply with the requirements of the bylaws.” Id. at *19.
The Appeals Court did not reach the issue of whether unit owner ballots are confidential and not subject to inspection upon the request of a unit owner pursuant to G.L. c. 183A § 10(c).
Gutierrez makes clear that even if a condominium’s governing documents do not expressly authorize the use of electronic voting, the practice may nonetheless be an acceptable voting method, especially where the bylaws empower the board with the discretionary authority to take action that is necessary and proper for the sound management of the condominium. Anyone who is unsure about whether their condominium documents authorize the board to allow the use of electronic voting is well-advised to consult with an experienced condominium attorney to avoid disputes over the method for conducting elections.