Breaking the tie vote ethics

Here is my question- some of this may not be relevant but please bear with me:

A while ago we upgraded to full property management, meaning they now officiate over the meeting, send out violations etc. We recently
held elections for five members and wound up with a three way tie for two positions. This turned out to be a bit of a hostile takeover because three new members are on while the President and current member are in a three way tie with an anti Board resident. A total of seven board positions are in play, but two are not up for re election.

This was about three weeks ago, tie confirmed and everyone was notified, new ballots printed for the three way run off and a run off election has been held, all by return mail. The votes are to be counted Monday. (three days from now) I might add that word on the street is the Pres is out with this vote. Today, the President says they have found three original votes from the first election that came in by mail, but came in past the deadline for the Prop Mgmt company to count them. The property company invalided them because they came in past the due date. Supposedly they did come in before the annual meeting, but were late being mailed.

All this just a few days before the new election votes are counted. So now the Board President is pushing for a cancellation of the new ballots and wants to just count the three. Apparently, the Pres feels this way she will stay, that is obvious- but the official version is fairness. The property company is worried now and wants to get the lawyers involved no doubt to get cover, and wants the Board to vote on getting the HOA lawyers written opinion on what to do. The Twist is in AZ the law allows both tie breaker members to remain on the Board and vote, which is a sure vote for the delay.

Lastly, the lawyer is tight with the President and will no doubt be replaced if the new Board takes hold. Everything hinges on this new vote.

My opinion is the new vote takes precedent and the time has passed for finding old uncounted votes- lawyers be damned. The CC&r's and bylaws are silent on this specific issue. I've looked for case law with no luck. I think the Board ceded the elections to the prop mgmt. company and the new vote should stand. Any thoughts pro or con? Statue, case law, conflict of interest, anything? I feel like I'm dealing with Boss Hog.

Robert,

AZ law requires that members be allowed to cast their votes in person or by mail. Most associations adopt some sort of election procedure that includes a cut-off date for accepting votes. The few that I am familiar with require that the ballot be received by a certain date regardless of when it was postmarked.

From your description, it sounds like your association used the postmark date rather than the date received as the deadline. Personally, I do not like using postmarks as the Post Office is not an agent for the association. If the three ballots had been received prior to the time the ballots were counted, they should have been counted regardless of their postmarks. The statutes do not address this matter but this is precisely how ballots for public elections are handled and it would be a hard sell to convince a court to accept the postmark argument.

In this case, however, your association has determined rightly or wrongly that a tie exists and that they will have a run-off election. Once that decision was made it became too late to "find" uncounted ballots from the original election.

"My opinion is the new vote takes precedent and the time has passed for finding old uncounted votes- lawyers be damned." I agree and hope the new board fires the management company and its attorney.