By Kat Formeller, Senior Counsel
Tressler LLP
Bolingbrook, IL

Legislation was enacted in January 2015 (Illinois Public Act 98-1042) which made changes to both the Illinois Condominium Property Act (“Condo Act”) and the Illinois Common Interest Community Act (“CICAA”) to allow for electronic notice and voting.   Previously, in order to bypass the archaic way of voting, associations had to amend their Declaration and By-Laws which requires membership approval.  Now, the board can adopt the appropriate rules to allow the association to use “technological means” to issue notices and collect votes from members.  This article addresses some “best practices” for drafting, adopting and implementing rules for electronic voting.

In order for an association to conduct its voting electronically, the association must first draft and adopt a rule which authorizes the board to send out electronic notices to members of the association as well as allows members to vote electronically.  CICAA does not specifically address the adoption of rules and regulations.  Thus, for common interest community associations, the association’s declaration and bylaws will determine the appropriate process.  As for condominiums, Section 18.4 of the Condo Act provides the procedures for adopting rules and regulations. 

A rule for electronic notices and voting should define the “technological means” that the board deems will “provide sufficient security, reliability, identification, and verifiability” - - i.e. Electronic Mail (“email”) - - as required by Section 18.8(b) of the Condo Act and Section 1-85(b) of CICAA.  The rule should also provide that the “technological means” of communications adopted by the board affords the association sufficient means of creating a record of those communications and collecting and tallying votes which the association can maintain, as required by Section 18.8(d) of the Condo Act and Section 1-85(d) of the Act. 

A rule for electronic notices and voting should also be specific and include detailed procedures for how notices are to be sent as well as how voting is to be conducted.  For example, the rule should state that voting by proxies is prohibited in board elections that are conducted electronically pursuant to Section 18(b)(9(B) of the Condo Act and 1-25(i) of CICAA. Additionally, it may be helpful to include in the rule how the board will handle the receipt of both a paper ballot and an electronic ballot from the same member.  If a member appears at a meeting and casts a ballot, the electronic ballot submitted by the member should be voided. 

Pursuant to Section 18(b)(9(B) of the Condo Act, Condo associations must adopt their rules for electronic voting at least 120 days before the board election.  Common interest communities, however, do not have such a restriction.  Once the rule is adopted, the association must obtain written authorization from its members who agree to participate in conducting elections via email or other technological means.  If a member does not provide such written authorization, the association must, at its expense, conduct business with the person without the use of electronic transmission or other equivalent technological means.

Finally, the Condo Act and CICAA provide certain provisions for the issuance of notices and instructions regarding electronic voting to members.  Instructions for electronic board elections are to be issued to members not less than ten (10) and not more than thirty (30) days before the election meeting pursuant to Section 18(b)(9)(B-5) of the Condo Act and Section 1-25(h-5)(i) of CICAA.  Section 18(b)(9)(B-5) of the Condo Act and Section 1-25(h-5)(i) of CICAA further provide that the notices/instructions should include the names of all candidates and must give the member voting through electronic or other technological means the opportunity to cast votes for candidates whose names do not appear on the ballot.

You should contact your association’s attorney with any questions regarding electronic voting and the proper procedures for same.