HOA BOD election

Started by RB4 • 7 replies • 1582 views

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RB4 (Illinois)
Posts: 15

Posted:

Arbor Creek Homeowners Assn 2012 Board of Directors election ballots were not properly formatted when mailed. BY-LAWS required blocks for member signature, address, lot # were not on ballot. Board learned of omission two weeks prior to election, did not notify members, subsequently those ballots were not counted (deemed invalid by board). Some members, including boardmembers, did pencil-in the missing info, based upon past voting experience. Board will not do re-vote, and not will not discuss their actions because they consider it a covenant violation and as such will only be addressed in closed session. The board members retained their seats since some of their ballots were "valid". Valid ballot write-ins were not seated, as this board decided to operate as is.
Does anyone know if there is an Illinois organization to assist in getting a re-vote. This board will use the assn attorney to defend their actions, so we are paying to both prosecute and defend. The board knows we can't afford the challenge. Thanks.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Due to the board's fault (of not providing an accurate ballot) the election is deemed null and void and should be done again.

Member should insist on a valid election - or you will get the same ole board again.

Motion to establish an election committee who will oversee all this.

SusanW1 (Michigan)
Posts: 5,202

Posted:

How strongly do you feel about all this?

If this board does not re-hold elections soon, write the attorney and tell him that Members demand an election and he needs to tell the board to hold it - or a recall will be launched.

Then do it.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi RB:

I am not from Illinois and would not know of any “organizations”. I did look at your state statutes and found the following:

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=076501600HArt%2E+1&ActID=3273&ChapterID=62&SeqStart=100000&SeqEnd=1850000

(765 ILCS 160/1-25)
Sec. 1-25. Board of managers, board of directors, duties, elections, and voting.

(h) Where there is more than one owner of a unit and there is only one member vote associated with that unit, if only one of the multiple owners is present at a meeting of the membership, he or she is entitled to cast the member vote associated with that unit.

(h-5) A member may vote:

(1) by proxy executed in writing by the member or by

his or her duly authorized attorney in fact, provided, however, that the proxy bears the date of execution. Unless the community instruments or the written proxy itself provide otherwise, proxies will not be valid for more than 11 months after the date of its execution; or

(2) by submitting an association-issued ballot in person at the election meeting; or

(3) by submitting an association-issued ballot to the association or its designated agent by mail or other means of delivery specified in the declaration or bylaws.

(i) The association may, upon adoption of the appropriate rules by the board, conduct elections by secret ballot, distributed by the association, whereby the voting ballot is marked only with the voting interest for the member and the vote itself, provided that the association shall further adopt rules to verify the status of the member issuing a proxy or casting a ballot. A candidate for election to the board or such candidate's representative shall have the right to be present at the counting of ballots at such election.

Section (h-5) references submitting an association-issued ballot. Therefore, if the association issued the ballot then it is legal and should have been counted even if did not match your by-laws. State statutes potentially will supersede the documents unless the State Statute defers to the governing documents. An example would be the following bold section in your state statutes:

(a) Except to the extent otherwise provided by the declaration or other community instruments, the terms defined in Section 1-5 of this Act shall be deemed to have the meaning specified therein unless the context otherwise requires.

You will notice how it defers to the governing documents to take precedence over the state statute for that particular section. Section (h) as noted above does not defer to the governing documents; therefore, the state statute would supersede. If as you stated the association issued the ballot, then it would as stated in the statute essentially be a legal ballot to be counted unless your documents demand “Secrete Ballot” … in which case the above noted Section (i) would apply and that section does reference the governing documents.

JanetB2 (Colorado)
Posts: 4,219

Posted:

You need to let us know whether or not the ballots were "secrete ballots" to better assist.

RB4 (Illinois)
Posts: 15

Posted:

Thanks for all the info. The election for Board of Directors is a secret ballot, with specific information to be printed on the ballot so that it can be determined the ballot was submitted by a homeowner in good standing. The specific info, as required in the By-Laws was not on the ballot, thus it cannot be determined who voted. Additionally the Board stated there were not enough "valid" votes to meet the quorum requirements. Since homeowners are not permitted to see or handle the completed ballots, we have to take their word. According to them, since there was no valid election,they stay on the Board. One boardmember, former president, stated there hasn't been a quorum for years. This was the first time that info was revealed. In the past, only the "winners" of the election were publicized and certain boardmembers always seemed to win, serving >10 years. Too expensive to fight, so hopefully next year there'll be a change.
Thanks again for the feedback.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi RB:

Before you give up until next year there are possibly options or avenues to review or pursue. The following are also noted in your state statutes:

(765 ILCS 160/1-30)
Sec. 1-30. Board duties and obligations; records.

(i) Board records.
(1) The board shall maintain the following records of the association and make them available for examination and copying at convenient hours of weekdays by any unit owner in a common interest community subject to the authority of the board, their mortgagees, and their duly authorized agents or attorneys:

(iv) With a written statement of a proper purpose, ballots and proxies related thereto, if any, for any election held for the board and for any other matters voted on by the unit owners, which shall be maintained for not less than one year.

(4) If the board fails to provide records properly requested under paragraph (1) of this subsection (i) within the time period provided in that paragraph (1), the unit owner may seek appropriate relief and shall be entitled to an award of reasonable attorney's fees and costs if the unit owner prevails and the court finds that such failure is due to the acts or omissions of the board of managers or the board of directors.

(765 ILCS 160/1-40)
Sec. 1-40. Meetings.

(a) Notice of any membership meeting shall be given detailing the time, place, and purpose of such meeting no less than 10 and no more than 30 days prior to the meeting through a prescribed delivery method.

(765 ILCS 160/1-40)
Sec. 1-40. Meetings.

(b) Meetings.
(1) Twenty percent of the membership shall constitute a quorum, unless the community instruments indicate a lesser amount.

(3) Special meetings of the board may be called by the president, by 25% of the members of the board, or by any other method that is prescribed in the community instruments. Special meetings of the membership may be called by the president, the board, 20% of the membership, or any other method that is prescribed in the community instruments.

You potentially have some issues in that the ballots were not proper meeting the requirements in the governing documents (per your statement as we cannot view this info). The board can and should upon appropriate written request provide information regarding the ballots to determine if quorum was met. This is only 20% unless your governing documents indicate a lesser amount.

The main issue is homeowners can see per the State Statutes the voting records.

I would make some requests to view the information via a letter sent “Certified Return Receipt” and verify the information. Another option is 20% of the membership can call a special meeting to review the ballots and proxies for the election.

Guess what pursuing these options cost … virtually nothing except for mailing of the certified letter.

SandraZ (Louisiana)
Posts: 9

Posted:

Call the attorney and make sure he/she is aware of your by-laws, covenants and articles. Show them the proxies. Your board might keep the attorney in the dark. It happened to us. Let the association pay for you contacting the lawyer. Your a homeowner paying your dues and the lawyer is to represent the homeowners association.

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