Posted:
Kerry and Thomas,
Roger is right. The manager should have known better and should have corrected the president. As it stands now, if the candidate loses he has grounds to contest the election.
Perhaps your manager simply lacked the confidence to contradict the president at the meeting, but I suspect that this manager may not be familiar enough with your bylaws, or did not bother to check them before he printed the ballot.
This is not acceptable. You pay your manager to be at your board meeting not only to take minutes and model parliamentary procedure, but above all, to help your directors understand their duties under the law. That means not only following state statutes, but also your own ruling documents. There is no excuse for the managing agent not to be familiar with both.
There is nothing more important to a well-functioning HOA than proper elections, and although the nomination procedure is likely found in your own bylaws, Ca. law is very clear about the requirements for campaigns, ballots and voting. The pertinent section of Davis-Strirling is 1363.03. It was clarified in July of 2006, so all community managers have had 5 years to acquaint themselves with the “new election laws."
It could be argued that by making a statement from the chair at the general meeting, the President was breaking 1363.04.(1) which forbids "expressly advocating the election or defeat of any candidate.... If the incumbent loses and sues, it is likely that the board would be forced to hold another election, so I hope the board makes it clear to the manager that the management would be expected to fund a new election.
As responsible homeowners you may need to politely remind the managers that, although they report to the Board of Directors, they actually work for the benefit of the entire Association. As such, they have a responsibility to facilitate proper elections.
In the contract between the HOA and your management co., there should be a clause about the company providing guidance to the board to help the board comply with the laws and your ruling docs. This is a good time to take a look at that contract. All owners have the right under {1365.2.(a)(1)(D)} to see that particular executed contract. Further down in the same citation, the law again mentions the management contract by name, so that there can be no mistake: {section (iv)} " Privledged contracts shall not include contracts for maintenance, management or legal services."
If the contract has some kind of disclaimer stating that even when the manager screws up, he's not liable, well, I should think that would be an issue for next year's negotiations, (at the least), but IMO the board should let the manager know that they won't be paying any expenses involved in defending themselves against the manager's mistake.
So Thomas and Kerry- you have some homework to do, but rest assured, the law is squarely on the side of fair and transparent elections; the specific requirements are quite clear and should be well understood by your community manager. I am assuming that the President simply made a mistake, but was acting in good faith, and he/she should not feel embarrassed about not being aware of all the details of election law. The board should be able to depend on their paid management team for guidance in this, and if that guidance failed them, the manager is responsible to see that everything is made right. If the manager doesn’t see it that way, I’d wonder what else they’re not taking seriously.