Election Ballot Error

Started by DennisM5 • 5 replies • 1766 views

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DennisM5 (Arizona)
Posts: 2

Posted:

In Arizona we are classified as a Planned Community with an HOA Association Board.
In our current election there were 2 positions open on our board for 2 year terms. We decided to offer 1 of the positions for a 1 year term to entice more candidates to run. We use a self nominating form that the candidates fill out and return to the Nominating Committee. The ballots are printed with the candidates names and a space for a write in candidate and mailed out to all the members. we use a 2 envelope secret ballot system. They are to be returned to the Nominating Committee by a certain date to be counted and then ratified by the Board.
It was pointed out by one of the members, which had 4 write in votes, when the ballots were being counted that we were in violation of the Article of Incorporation that states that all terms must be for 2 years.
In fairness to the candidates the Board wants to invalidate the election and send out new ballots with the 3 candidates names for the 2 year terms.
Does the error on the ballot of 1 year vs 2 year term invalidate the election?
I can't find anything in the AZ Statues that covers this issue.

DavidW5 (North Carolina)
Posts: 565

Posted:

Dennis,

It is obvious that your current board was not sufficiently familiar with your own governing documents. Before doing anything else, study those documents!!!

Are you self managed or do you have a management company? If you are self managed it is even more important to know your governing documents inside and out. If you have a management company, they should have been familiar with the provisions of your documents and should have prevented this snafu.

I do not know if your election is valid or not. My thought is that you could simply announce that you were in error in saying that the term would be one year and that anyone elected on that basis is free to resign from the board after serving one year. Of course, a board member is always free to resign at any time, for any reason. Your governing docs should contain the procedures to be used to fill a vacant board seat between elections.

The time to have your planned election procedures validated is before, not after the election. It would have cost you some legal fees but if you have any doubts, get the procedures reviewed by the association attorney before using them.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Dennis,

Failure to follow procedures would invalidate the process.

My suggestion would be to inform the candidates that, per the governing documents, the term was actually for two years vs. the one year advertised by the Board. Offer the person who won the one year term the seat but point out it's for two years. If the person turns it down, offer it to the next highest votes, etc. etc. until the seat is filled.

The other option would be to hold a new election.

As previously mentioned, all board members should read the governing documents and when ever the board wants to change something, someone on the board (actually everyone on the Board) should take the time to review the documents to see if the Board has that authority or not.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Dennis,

Arizona is a very easy state in which to incorporate in large part because the Articles of Incorporation require very little detail. Somehow whoever filed your Articles managed to muck them up by adding the unnecessary verbiage that now has come back to bite you in the butt.

Among other things, I would strongly suggest amending your Articles of Incorporation to keep it bare boned. Things such as the length of a directors term should be in your bylaws. There is no requirement to have Articles or their amendments drawn up by an attorney. The only thing that makes Articles difficult to amend is that, like the original articles, they must be published and that costs way more than the filing fees.

DennisM5 (Arizona)
Posts: 2

Posted:

It was an oversight by the Board due to the way the the Articles were written. I have since learned that a member of the Original Board knew of this and told the person with the 4 write in votes. Instead of letting the current Board know of the mistake they planned on using this to disqualify the 1 year candidate and get the person with the 4 write in votes elected. We have a group of 4 that constantly look for ways to stir the pot. These 2 happen to be in that group. 4 write in votes falls under Plurality (Simple Majority)and is not enough votes to be elected in place of the 1 year candidate who received 20 votes. Am I correct in this assumption?

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Quote:

Posted By DennisM5 on 01/02/2014 9:24 AM
It was an oversight by the Board due to the way the the Articles were written. I have since learned that a member of the Original Board knew of this and told the person with the 4 write in votes. Instead of letting the current Board know of the mistake they planned on using this to disqualify the 1 year candidate and get the person with the 4 write in votes elected. We have a group of 4 that constantly look for ways to stir the pot. These 2 happen to be in that group. 4 write in votes falls under Plurality (Simple Majority)and is not enough votes to be elected in place of the 1 year candidate who received 20 votes. Am I correct in this assumption?

If you follow Robert's Rules to the letter (few do) a candidate must have a majority of all the votes cast to win election. Write-in votes seldom, if ever, can achieve a majority, but they can prevent another candidate from receiving a majority and thus cause that candidate to lose an election.

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