When is it time to sue the HOA?

I live in a HOA in Calif. For a long time, I have felt that some members of the board are corrupt.
We now have undeniable proof that election fraud has taken place on one or more annual elections (maybe going back years).

One homeowner who ran for election last year (June 2013) recently decided to inspect the ballots from that last election.
This HO discovered that she "WAS" elected to the board but the board and the inspectors of the election claimed and published vote tallies
that did not match the actual ballots. This person was told they did not win and was not seated.

During the recent inspection (and count) at the property managers office, there was the primary Inspector present along with the new (six months)
property manager. All the board members and the HOA retained attorney did not attend this inspection and recount of the ballots.

So, the question to you all is what to do about this? It is clearly evident that Fraud took place and it was not a simple miscount. Our by-laws state that there are one or three inspectors (per davis stirling). We use three people for inspectors and the published results supposedly counted, check and re-checked (verified) by the inspectors.... It appears that there was a pre-determined outcome that they wanted to have to prevent this HO from ascending to the Board of Directors...

What to do now? What would you do?

Election fraud is a crime in Calif (punishable by up to a year in county jail or a fine or both. It is a misdemeanor.
Also, since the US mail is used to send/receive ballots this constitutes mail fraud (a federal crime) a crime punishable by up
to 20 years in prison, or a fine or both.

These are actual crimes and we feel these cannot be ignored and need to be reported to legal authorities.
According to this persons retained attorney, election fraud is often just the tip of the iceberg and is often used to hide financial mis-deeds.

Has anyone had experience with this? Would you sue the HOA or the person responsible directly?
It appears that D&O insurance does not cover willful criminal acts....

This years elections are currently in-process. Our new property manager suggest using a neutral 3rd party to count the votes.
The board has not responded to letters from the person's lawyer (neither has the HOA's lawyer).

This one looks to be interesting....

One member of the board who was seated last year already has resigned...
Other neighbors are now just starting to realize that something very "hincky" is going on wrt the current seated board.

So, when is it the right thing to sue the board or HOA.... clearly they (current long serving board members) have missed the concept that the HOA and Board exist solely to protect property values. If they are doing criminal acts, that can and should be cleared by the courts, then that bad publicity will have a negative impact on all our property values. Seems to many of my neighbors that this is now in the public realm.....

What would you do? How would you handle it?

Fred

I remember a similar incident I was involved in 5 years ago. If I recall correctly, our associations have/had the same attorney.

I have never come across an HOA or a Board being charged with election fraud in a HOA. HOA are very loosely regulated, and I use the word loosely, loosely.

In 2006, when section 1363.03, now 5105 of the Civil Code was enacted, the first sentence stated that all association shall adopt elections. The only thing that did was tell the management firms and attorneys, if you want to continue running the association, you need to come up with some BS rules that allow a third party under contract to act as an inspector of elections. That was the beginning of the end. I have seen the bad things that happen from all aspects, homeowner, Board president, manager and management company.

In two years managing a total of 15 properties, I have used the services of an attorney ONE time, and that was only because they were in place, on a case I had inherited. I'm sorry, but solving issues within a HOA is not rocket science, besides, there is a great side giving free legal advice, for FREE. If that really doesn't work for an association, as a last resort, hire an attorney, but keep them on a short leash.

What I would do and have done is gather pretty of support, and present a strong slate of candidates to the membership. Go door to door if you have too. Take back your HOA. Suing an HOA is a waste of time and money. Rise above the rest.

Sorry Glen, I was not very clear with regards to the candidate trying to get the ballots recounted (inspected). The board that denied her made it very hard in that they actually stonewalled her attempts for sooner recounts.
They gave every excuse in the world to try to stymie her efforts at doing the recount (inspection). First they claimed that some of the ballots had comments from some of the members on them. So, in order to inspect, she would have had to pay for the cost to have all the ballots copied and for the member info to be redacted from the ballots - uh, really. The board went round and round on this tangent for over six months. Then the previous property manager up and quit as it looked like an actual inspection was going to take place. For the last 3-4 months it was delayed due to scheduling issues.

Finally in frustration, this person hired a lawyer well versed in HOA laws. Once the lawyer was engaged, he wrote a strongly worded letter stating all the applicable laws and rights of the homeowner to be able to inspect the ballots.

This inspection took place three weeks ago. The HOA Attorney told all board members not to attend. So the inspection took place at the new property manager's offices. The long term on-site maintenance man/Sr Inspector of elections was present. He was there to verify his signature on the tape seal he applied at the end of the balloting last June.

There was clear evidence that more than a few ballots were tampered with. The election had 7 candidates of which each ballot could vote for four.

Bottom line was that the election results appear to have been pre-determined prior to the actual counting of ballots. The totals from the recent inspection proved that none of actual counts matched a single published total for any of the candidates. In this instance, the HO/candidate who had the inspection done received 9 more votes than the person who they claimed beat her out for a board seat.

No way, no how was this a simple miscount of giving votes for candidate "A" to candidate "B". All of the candidates actual vote tallies did not match the posted results.

It appears the entire election was rigged... this meets the threshold of Election Fraud. Since the US Mail was used, it is also, clearly mail fraud.
Since we used 3 inspectors, there seems to have been something fishy there too. I could go on and state that the use of a paid employee as an inspector of elections is a violation of the law as he has a vested interest in the outcome of the election. He has been in this paid position as on-site maintenance man for 18 years and has his contract renewed and given raises with no competitive bids being allowed...
The other two inspectors of elections are good friends with the majority members of the board and a long time ruling click we've had...

Don't know about the process of getting a case in front of the DA where you live. Here, the process is that you need to go to the police and have a report that they investigate to some degree then they turn it over to the DA for further action and investigation.

It is clear to us that actual crimes have been committed since the published election results are so far off from the actual ballots...

Again, there are some in the development who are very upset and feel that actual laws have been broken and that those responsible need to be held accountable for their actions. As of today, a civil suit has been filed and a number of residents (a small group to be sure) are demanding that law enforcement is called and an investigation done.

How would you folks proceed? What would you do if you found out laws have been broken??

From Davis-Stirling site:

Inspection of Ballots

Legal Challenge to Election

Vote Recount

Small Claims Challenges

Personal opinion, it may be quicker and cheaper to take this to the membership.
That individual should also show up at the next board meeting and demand to be seated as a board member and the loser be removed.

By the way, has the Board responded to the recount?

Here is a link to the article mentioned by Glen: Second arrest made in ballot tampering case in Wild Acres from the Pocono Record

From this web page on a CA attorney's blog, they list the penalties that Glen already pointed out.

Challenges to HOA Elections: Facts and Consequences A 2012 article on a CA HOA Lawyer Blog.

Maybe a bunch of you should go to the next board meeting and demand that the woman who was actually elected be seated on the board. Support her!

The Board, btw, is not required to choose the next highest vote-getter unless your docs say so (which I doubt).

And probably others have said, really gather support and recall the current board.

I think others have said it, especially Richard & Tim, I think, , suing the Board would be too costly and slow. Try getting your democracy with a small "d" to act and vote out the jerks.

Actually, a "bunch" of us have been attending the board meetings. (for years). The board meetings are almost comical when looking at it from the "who is attending" standpoint. It is sort of like a middle school dance where all the boys are on one side of the gym and all the girls on the other. In our board meetings, you have the spouses of the current ruling majority of the board and all their friends who have benefitted from variances and selective enforcement on one side of the room, and the other half of attendees is made up of those who care about justice, fairness, equal enforcement of rules and a common sense reading of the governing documents.

It is so sad, yet funny to witness these farcical meetings. The rest of the associations members either do not have a dog in the fight or just don't want to be bothered with this stuff. The sad thing there is that these folks will be impacted by the things that the ruling majority of the board is doing.... it will catch up on everyone sooner of later.

As far as voting goes.... we all know it is very hard to unseat longstanding incumbents. Especially those who have to resort to un-ethical means to remain on the board - such as buying votes with variances or selective enforcement of the rules, or by rigging elections...

In regards to suing the board, I think the owner that is doing it has gone through all the other excellent suggestions mentioned by this chat-room. When one has tried all the proper and polite things and still has not gotten anywhere, what then?

As far as the now vacant board seat and who fills it.... yes, our governing docs do not specify that the next highest vote count candidate from the last election should be seated - however, in this case, one would think that giving the seat to the person who should have had it all along would be the right and ethical thing to do, right? Not with this corrupt board. They have not acknowledged the discrepancy in the vote tallies?They have known about them for nearly a month now. They have refused to respond to the candidate.

All they have said is that the inspection (and tallies discovered in that inspection) are not valid because the Inspectors of election did not do the recount??? WTF? They're telling us that the same three people who supposedly created this problem need to do the re-count and that somehow, magically, they will either re-certify their prior results or issue the correct results.

How are this election results at issue?

1.) there were four (4) board positions up for election.
2.) There were seven (7) candidates on the ballot.
3.) Each ballot could select up to four candidates.
4.) There were 115 ballots returned.
5.) 4 votes per ballot X 115 Ballots equals a possible 460 total votes (minus any ballots that voted for less than 4 selections)

6.) at the time of election, the total number of returned ballots was info that was not shared with the membership, so no one could discover if fraud took place.

7.) When counting up the totals votes for all seven candidates there were 475 votes tallied.
8.) where did the extra 15 votes come from (actually more than 15 since a small portion of ballots only indicated one or two candidates those folks were voting for)
9.) None of the inspected ballot vote tallies correlate to the numbers published the night of the election or in the newsletter sent out to the membership.

10.) Then we have the miscount/discrepancy that denied one candidate a rightful seat on the board.

I can't come up with any sort of plausible reason for the discrepancies above. Vote count is off for all candidates, and the totals don't match the maximum possible votes based on items 4 & 5...?

Three inspectors of elections to count, re-count and verify all the ballots and these errors made it past all three without a word or question being brought up. Yet the inspectors were an employee of the association and the other two are friends of the ruling majority incumbent directors.

A rigged election seems to be a reasonable suspicion and cause for criminal investigation. As stated, Election Fraud is a criminal act. The US Mail was used to send/receive ballots and to mail out the published (fraudulent) results. (Pretty easy to prove mail fraud in this case).

Do you folks really think that a bunch (twenty or so concerned folks) going to the next board meeting and demanding that the proper person be seated is going to achieve that outcome? Given the extent these folks are willing to go to in order to keep this person off the board, it is clearly evident that they will continue to twist and turn throwing every possible combination and permutation of the governing docs and the state codes at the rightfully elected board member until it is too late to seat the person for the remaining time of her term.

They have been doing that since the election already....

Carol,

Thanks. That's exactly what we're going to do at the next meeting.

In addition to that we are pushing for a criminal investigation as fraud appears to have been committed.