quorum is not present - valid election?

In December, an election was held for two board seats. Pursuant to by-laws, the election was by secret ballot, which were mailed out by the management company. The special board meeting to open and count the ballots was held just before Christmas. At the meeting, it was determined that a quorum of ballots did not exist, and the board voted to hold a second meeting in January, where the ballots would be counted.

In the time between the two election meetings, nothing was done by the management company. At the second meeting, the ballots were counted (approximately 30% of homeowners voted) and the two incumbent directors were re-elected.

Question: In reviewing the bylaws, there are two sections which make me question if procedures were followed.

1. The by-laws state that "Every proxy shall be revocable and shall automatically cease after completion of the meeting for which proxy was filed." In this case, the proxy was filed for a meeting in December. Did the proxy expire after the meeting?

2. Special Meeting notice "It is the duty of the Secretary to send a notice of each special meeting at least 10 days prior to such meeting..." The sole purpose for scheduling the January meeting was to count the ballots. However, no notice was sent out to the members regarding the special session.

I am in California and want to know if the board was obligated to send out new ballots; and/or, notify the members that a second meeting had to be scheduled because a quorum wasn't reached.

Appreciate your help

I was having a senior moment. LOL It was a ballot.

The election was by secret ballot. We did not receive sufficient ballots to reach a majority. The meeting was adjourned and a new meeting time announced. Approximately, 30% of the homeowners submitted ballots, which were counted at the second meeting.

I'm struggling with the idea that by simply adjourning the meeting and waiting a couple of weeks, the election could move forward with less than a quorum. It seems to me that the directors should have notified the members, informing them of the 2nd meeting and soliciting their ballots.

Besides that absence of a notification, there isn't anything in the master declaration, by-laws, or regulations that provides for less than a quorum when electing a director. In California, I'm assuming that the civil code provides for a process (other than Superior court) to elect a director without a quorum.

Sorry for the earlier confusion. I live in an association that is at war, and everything has become confusing and contested.

Thanks

I appreciate the reference to the website. I actually began my research using the election link that you suggested. The site indicates that the board would have to go to court in order to reduce the number of voters needed. I cannot find any reference to language that enables a board to reduce the number of voters, simply by re-scheduling the election to a later date.

Quote for Davis-Stirling:

Court Petition to Reduce Quorum. If the failure to hold an annual meeting is due to a lack of quorum, the board or any member can file a petition with the court under Corp. Code §7515 to lower the quorum requirement to the number of ballots cast.

Gary,

Are you saying that there was no quorum at either meeting?

Gary

In my last HOA if we did not have a quorum at our Annual Meeting, our docs allowed us to recess (as in not ended) and recall it (with proper notice) and at the next meeting our quorum requirement was cut in half. We once had to got to the third meeting to get a BOD elected.

We used attendees and proxies to establish if there is a quorum. We did not use secret nor absentee ballots. Our proxies were good for one year unless other wise stated.

Only twice in some 10 years did we establish a quorum at our initial Annual Meeting. One time was a contentious BOD election where a faction had worked long and hard to not reelect several BOD members by voting others in. It worked. The other time was a Bylaw change from 75% of owners to 66% of owners need to make a Bylaw change which passed. In both cases there were more proxies recorded then actual homeowners in attendance.

Hope this helps.

Gary

We were 700 stand alone homes. Proxies allowed or not we had people working hard to get thsoe changes made. They wrote letters, manned tables at the ppol, made 1000's of phone calls, etc.

I think even with secret absentee ballots they might have worked hard enough to make it happen.

Not to turn this into a proxy versus ballot issue, but.....

OK.

25% of 500 homes (expecting all are current in assessments and have voting rights) = 125 needed for quorum.

This number could be less if there were members whose voting privileges were suspended due to being behind in assessment payments or being in violation of the covenants. Example:
500 lots, 10 not allowed to vote = 490. 25% of 490 = 123 needed for quorum

"Earlier in this thread, it was brought to my attention that a secret ballot is not a proxy" Gary, this is correct. However, per CA law, §1363.03, Ballots do count toward a quorum:

Civil Code §1363.03 (b) . . . A quorum shall be required only if so stated in the governing documents of the association or other provisions of law. If a quorum is required by the governing documents, each ballot received by the inspector of elections shall be treated as a member present at a meeting for purposes of establishing a quorum.

Per Davis-Stirling:

Quorum Defined. A "quorum" of the membership is the required minimum of number of members who must be present in person, by proxy and/or by ballot before the association may conduct business at a membership meeting. (Robert's Rules, 11th ed., pp. 21, 345.) The minimum number of members is usually defined in the CC&Rs or Bylaws.

Suspension of Voting Rights. If voting rights are suspended, quorum numbers are adjusted. For example, if an association consists of 100 members and quorum is a majority of the voting power, quorum is 51 members. If, however, 10 members had the voting rights suspended for being delinquent, the voting power is 90 and the quorum is 46.

Lack of Quorum. If a quorum is not present, the members at the meeting may adjourn the meeting to a later date but may not conduct any other business. If the bylaws provide for a descending quorum, the membership may be able to conduct business at the subsequent meeting if the lower quorum requirements are met.

Gary,

I would suggest that you request a meeting with the management company and/or election official and ask how they determined the quorum requirement and what that requirement was.

Tim

Gary, In your governing documents, probably your bylaws, the % of ballots(voting power) that you need to have a quorum for the elections of directors to your board is specified. In our HOA, the quorum requirement in person or by ballot is 25% (= 53 ballots here). What is the percent stated in your documents, Gary? Or did I miss it. Since 2006 in CA, absentee ballots count as members present per civil code (the Davis-Stirling Act)

You'll notice that there probably is a different and higher percent to revise your bylaws (here, a simple majority), and yet a higher one to revise your CC&Rs (here, 67%).

As Tim points out, davis-stirling.com is your friend.

You, for example, should get hard copies of your CC&Rs & bylaws from your Mgmt. Co (MC). If you have a web site, they should be posted in an area that only owners can access. I'm not sure what you mean that you only can see an "image" of them.

Your HOA via its MC can charge you for copies of your governing documents.

Your Board secretary (via your Prop. Mgr., perhaps) should have mailed the info announcing the postponed meetings.

It sounds to me like either your board or MC is pretty sloppy (at best)--maybe both. Consider getting together with other concerned owners, learning your documents and learn Davis-Stirling.

As Tim has pointed out on this thread, davis-stirling.com--the SITE-- is invaluable for HOA Owners in CA. It's a fabulous educational tool.

Your assertion, John46, that Davis-Stirling--the LEGISLATION--empowers the few vs. the many is mysterious to me. I've noticed that criticisms of the Davis-Stirling Act usually come from non-Californians, which is baffling.