Election Challenge Process

Hello,

We are located in California. Recently our HOA went through the election process and there were some things that were not right. The issue centers around the appointment of the Inspector of Elections. Is there anything that a group of homeowners can do make the Board of Directors follow the election rules. Basically what has happened is that the election was run by the management company and this seems to be contrary to our state laws.

At our annual meeting a homeowner asked the property manager who was the inspector of the elections. The manager sad that they were. Then backtracked and said that the BoD needed to appoint one. This did not seem like a good answer since ballots had already been cast. (There is nothing that can be found in the Board meeting minutes that an inspector of elections was appointed.) Ballots were not counted at the annual meeting because we did not reach quorum. The property manager left with the ballots. A few days later we got some mail that said there was another meeting in the next month.

At the next meeting the property manager shows up with another employee of the property management company and the ballots. It turns out that the other employee of the property management company was now the inspector of elections. After votes were counted, several homeowners questioned procedure and were shut down by the property manager.

As I read Davis-Sterling there seems to be a formal procedure and protocol that should be used, see below for the CC. We did not have an independent third party. There is nothing in the CCRs that says the property manager can conduct elections. All of our governing documents reference Davis-Sterling.

So, what are we to do?

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Civil Code §5110. Inspector of Elections.
[Old: Civ. Code §1363.03(c)]

(a) The association shall select an independent third party or parties as an inspector of elections. The number of inspectors of elections shall be one or three.

(b) For the purposes of this section, an independent third party includes, but is not limited to, a volunteer poll worker with the county registrar of voters, a licensee of the California Board of Accountancy, or a notary public. An independent third party may be a member, but may not be a director or a candidate for director or be related to a director or to a candidate for director. An independent third party may not be a person, business entity, or subdivision of a business entity who is currently employed or under contract to the association for any compensable services unless expressly authorized by rules of the association adopted pursuant to paragraph (5) of subdivision (a) of Section 5105.

Was there a quorum at the second meeting?

Personally, I would inform the board that they were in violation of the codes stated, that due to those violations the election could not be official, and that you are prepared to seek an injunction in a civil court as a means of enforcing the lawn and your governing documents. I would also ask when they plan to schedule another election to address those concerns, at which time you may be represented by your attorney. I would also notify them that they would be given adequate time to respond after receipt of the above via certified mail (10-14 days perhaps) before you sought the aforementioned injunction. After that period of time passed, if no adequate response was received, I would see to it that the proper paperwork was filed with the proper court.

Dave

The only problem I see is the time the inspector was appointed. A management company can be an inspector, as long as they association has it own rules, and all employees of the management company would be authorized to act as an inspector. The rules state "An independent third party may not be a person, business entity, or subdivision of a business entity who is currently employed or under contract to the association for any compensable services unless expressly authorized by rules of the association adopted pursuant to paragraph (5) of subdivision (a)". It would be legal to bring on another party from the same entity to act as an inspector.

The association did hold a second meeting and the ballots were counted, thus assuming that quorum was reached, usually reduced to maybe 25%.

IMO, the only way this could be challenged is IF the association didn't have a set of election rules properly adopted.

My bad Richard. I'm assuming that, by the bumbling actions of the board, they did not have the necessary rules in place, since it didn't seem like they knew what they were doing with any eloquence.

Hello DaveD3,

To seek an injunction it this something that an attorney must do or can a paralegal or citizen accomplish this task?

Thanks.

Hello CarolR11,

Let me do my best to answer all the questions.....

Management Company counted and did the tabulations.

Who knows what they did with the ballots? I suppose anything is possible. Kind of does not matter what I say if I can not prove it.

Lack of quorum, first time around we needed 50% and did not make it. Second time it was 25% and we did it. We have 120 homes.

Good question to when the polls were to close? The election was adjourned and did reconvene later with a lower quorum. I know that they did have homeowners keep voting during the second meeting. I supposed it would have been easy to vote twice the way the thing was run.

It was an election for the Board of Directors. It was for 2 seats. There were a total of 4 candidates. One of the candidates asked to be removed from the tally on the night of the second vote. While not illegal, that made for lots of wasted votes and then election of a not so popular candidate.

Our board should be a total of 5 but I thinks that we have 4. They seem to not want to fill a seat. HOA and community is just about a year old. Two of our BoD people were not elected they were appointed by the home builder. I will ask the builder nicely to remove them given this mess we are in.

"where the hell was your board when the MC was shutting down you homeowners?" --- A few of them were just sitting right there. The Management Company told the homeowners that we may not address the BoD members at this meeting. If we needed to do so we would have to put on the executive agenda for next time and that we should have addressed all these questions before the elections.

There are tensions in the HOA. It stems from the MC. The MC wants to run things like North Korea and selectively enforce our vague CC&Rs with a big stick. They say stuff like... "No exceptions, if we make one exception we have to make all exceptions." When you catch the MC doing anything wrong they hide behind the board and get very defensive.

Many of us try to see some good in the process but unfortunately the BoD is fast loosing credibility. The MC has no credibility.

Jason,

Forgive me, but are you still under developer control? If so, the rule kinda change unfortunately. While they are in control, they pretty much control the Board. It will be stated in your Bylaws.

If you are under homeowner control, meaning the developer/builder turned the association over at a proper annual meeting, then the process the management company used was proper. Not being there, I couldn't swear for sure though.

What associations fail to understand is that annual meetings and elections are two separate process and sometimes not done at the same meeting. The annual meeting, which is required by your Bylaws and Civil Code is a meeting of the Members, not a Board meeting. It generally is presided over by the President, not not always and not required. It could be delegated to someone else, but should be a Member. This meeting should have an agenda, but it is not a meeting for the Board to take any action, only the Members can take action.

Ballots from an election, on the other hand can be counted at an annual meeting, special of the Members, special meeting of the Board or just a plain Board meeting.

Ballots from any election or special assessment vote need to be kept for at least a year, to make sure there is no challenges, after which time, they can be destroyed.

RichardP13,

The builder no longer has any seats on the Board, they resigned 3 seats and appointed 2 seats. We had an election for 2 seats where the homeowners term were only for one year.

Well, I suppose the builder resigned the seats? I can not see anything in the Board meeting notes that say so. Things like this should be noted, and/or communicated to the homeowners at least recorded, right?

Again, I can't seem to get any one to answer who is on the board or who was on the board questions, or what were their executive offices, or their term dates? Richard, you might be on my HOA board for all I know?

The CC&Rs do say that the builder can appoint and revoke seats for up to a certain amount of time, i think it is 3 or 5 years. However, there is language that talks about the number of lots that the builder has. Out development sold out very fast. Builder has no interest.

We do understand that the Annual meeting was just that, not a regular meeting. However, when the MC opens up a Members forum what are they to expect? Questions and lots of them. So why do they get upset?

Richard offers a lot of good advice, Jason. Yes, read open meeting minutes to see see who the officers are. In addition, your Board is required per Davis-Stirling to hold an "organizational meeting" following the elections so that the board can choose its officers. This must be an open meeting.

Another thing is the total vote counts per candidate must be posted for homeowners, say, on a bulletin board or in a newsletter. If you have neither of those, the tabulations should be mailed to homeowners.

Again, even if irregular, would properly following the Davis-Stirling Act Election Rules have changed the outcome? (Too bad someone dropped out.) If not, just watch everything closely next year to make sure it's done right.

You're right, there's not way to know/prove what happened to the ballots. Our PM does collect ballots, but we as a board trust her to do so.

Your wrote, Jason, that the PM said that, re: homeowner's concerns, " . . . we would have to put on the executive agenda for next time." I don't grasp that at all since executive sessions do not include homeowners, only members of the Board of Directors and, usually the PM.

thanks, Richard & Jason, I now understand the reduced quorum at the follow-up meeting.

You might look again at your bylaws, Jason. Ours state that if the Board fails to fill a vacancy, homeowners may. But wait a minute, how can there only be 4 directors on a Board of 5 if there were thee candidates. Something's wrong with the math here.

IMO, Jason, with Richard, I don't see you how have enough "evidence" to pursue any kind of legal action. You need to rally the homeowners to recall the board. But I don't know if they even can do that IF the developer is still in control--you need a clear answer to that question.