HOA Election Solicitation that Breaks Our Rules

Our annual meeting an election is Tuesday, 10/28 and I'm running for reelection against two other incumbents and two newcomers for three seats on a Board of seven.

On incumbent, Mabel, has electioneered by putting a election solicitation for herself and opposed to someone else under the doors of many condos.

This is strictly against the Rules & Regs of our twin tower high rise in a gated community. In the rules also are items like ads, solicitations for donations, etc., etc. by any resident or their employees, servants, agents, friends, etc.

She could deny the activity, but we do have elevator cameras so she or whomever could be revealed--one flyer went to a 24th floor unit so I don't think Mabel hiked the stairs to avoid the camera.

I've brought this to our president's attention and her response is to let it go. Her "intuition" is that making a fuss would not be good for my candidacy or our HOA. She also rightly points out that most owners have already voted.

But I see it as a breach of Mabel's fiduciary duty of loyalty to our HOA & its governing documents by self dealing in this way. I see it as quite a serious offense.

Our attorney will be at our annual mtng., the regular mtng. before it and the Ex. Sess before that. What do you think of my asking him his advice or opinion?? Mabel will be there too, of course.

I may not get reelected anyway, Ann. Think it's gonna be close.

Mabel has been on the /board for more than 6-1/2 years so some do see her often unpleasant conduct at Board mntgs. Like a lot of HOAs, though, not many H/Os attend.

Is it against your HOA docs for the man to go around with flyers, photos, etc.?

Thanks for you reply, Larry

Our PM sent out the ballots and double envelopes. Also enclosed were Candidate Statements of about 1/2-3/4 pages long from all five of us. I highlighted my actions that benefitted my HOA.

I also sent targeted campaign letters to landlords by US mail. 37% of residents here are renters. I emailed an additional dozen or so to those I don't know very well. I targeted owners by mail who own more than one unit.

Other options candidates have are to sit in the lobbies and chat it up with anyone who comes to mailrooms. Any could have reserved one of our lounges and held an informal info session. Any could have put a poster in their windows with their pic, etc. if it didn't exceed 4'X4'. My Condo is pretty high, so it wouldn't be seen by many at all. Mabel's is on a low floor.

Mabel also stacked her 2+ page letter in the mailroom. Since it was so critical of the "other" candidate--that would be me--I wrote a reasoned rejoinder and stacked mine in the mailrooms.

So there are many ways to campaign without breaking our rules against solicitation of ANY kind under our condo doors. Of all owners, directors would enforce our governing docs.

Bottom line it for us Kerry. She broke the rules, what is the penalty for breaking the rule? Fine? Censor? Removal from the ballot? If the penalty is there is no real penalty, let it go, otherwise you come off as a whiner.

Kerry

Duty of Loyalty is a term used in corporation law to describe a fiduciaries' "conflicts of interest and requires fiduciaries to put the corporation's interests ahead of their own." "Corporate fiduciaries breach their duty of loyalty when they divert corporate assets, opportunities, or information for personal gain."

It is generally acceptable if a director makes a decision for the corporation that profits both him and the corporation. The duty of loyalty is breached when the director puts his or her interest in front of that of the corporation.

Mabel was nothing more then a bad girl. Little else. Have the BOD send her a letter telling her so.

Here is my opinion... If I understood the rules, then I would know that candidate broke them. Which means I would most likely NOT vote for a member for the board who does not know, follow, or understands the rules. If that person was to win or no one else mentions the issue, then you have bigger problems. Like no one knows the rules or you have a rule that needs changed.

The HOA is run by its members for its members. If this rule makes no sense or no one wants it, then it can be changed. The process all in the documents.

Well, Richard, apparently you didn't review this thread where I state clearly that we DO have rules against door-to-door solicitation/materials being placed under unit doors. In addition, davis-stirling.com cites case law, which allows restricted access HOAs like ours to have rules like ours.

Still, I appreciate Glen's point that I'd look like a whiner if I bring up Mabel's violation of the rules that she signed up to enforce. And John's that we sanction her by letter.

And Melissa's right. If voters don't know our rules, they won't see an issue with Mabel's flaunting them. Interesting, everyone seems to know them almost unconsciously as no one else has broken that rule in 8 years!! The rules itself makes sense: we have 211 condos--many residents have their own businesses, which I'm sure they'd like to promote. Many retirees volunteer in our urban setting. Several realtors live in our HOA. it's easy to see how there could be many solicitations for worthy causes, R.E. listings, muni campaigns. Would take no time at all to ride an elevator and 212 condos.

We have nice bulletin boards to promote whatever legal activity anyone would want.

There's a safety factor too. Slip hazard. All of our front doors open in to hardwood flooring. Big sheets of paper right inside the door aren't seen especially if the resent enters carry packages.

Thanks for your advice and observations, Ann. I'm thinking my original positive campaign statement will be a good thing. Even my rejoinder in the mailroom was pretty nice in that I correct Mabel's (major) errors either lies or just ignorance (not sure which), but I was adult about it.

This part of JohnC's quote fits, IMO: "The duty of loyalty is breached when the director puts his or her interest in front of that of the corporation." Mabel's action was completely self interested and she put it ahead for our community's reasonable rules.

Kerry

I am saying what she did does not amount to what you are accusing her of:

Corporate fiduciaries breach their duty of loyalty when they divert corporate assets, opportunities, or information for personal gain.

My beliefs: Did she violate a Rule & Regulation/Bylaw? Yes. Did she breach her duty of loyalty? No and not even close.

Kerry

I have read davis-stirling.com and there is a distinct difference between solicitation and campaigning. We have no soliciting in our rules and on our front gates. When I ran for my Board, I had a web page, sent mailers from the addresses I got from the association membership list and went door to door with flyers.

What she is doing is good old fashion campaigning. God bless her. If a court action were ever brought, you would lose, guaranteed.

Guess we are going to have to disagree on this.

Richard, Here's citation. I believe you've written that they are you HOA law firm.. "

"Fliers & Leaflets. Associations can prohibit door-to-door solicitors and the distribution of fliers, provided the development has restricted access. However, developments that are freely and openly accessible to the public cannot prohibit leafleting, solicitations, and fliers. (Golden Gateway v. Golden Gateway.)"

Read more: Free Speech Defined http://www.davis-stirling.com/tabid/1293/Default.aspx#ixzz3HHPA2xPg
from Davis-Stirling.com by Adams Kessler PLC.

It also states that the same laws that apply to public elections don't always apply to elections in private bodies like HOAs

HOAs, which are private, have the same rule about not campaigning near the election site. So I've given you my D-S.com citation. What is yours??

Here, too, is our rule: "Neither residents nor their families, employees, agents, visitors, licensees nor servants may distribute or cause to be distributed any advertising, pamphlet, free newspaper or any other printed matter on or in any portion of the property or on residents’ cars. This includes door-to- door solicitation, electioneering, etc. Please report violators immediately to the front desk or onsite management office."

I have NO intention in going to court over this trivial matter. I have no idea why you & Larry think I would!!

I do value your opinion, Richard, based on your experiences both aa a Board member and PM. Don't you agree that the word "electioneering" in our rule includes "campaigning"? (I don't have time to look up their definitions..)

I'm truly curious how you reached your opinion.

Here is my opinion.

The position is of a volunteer nature. The owners or a candidate is allowed a copy of the membership list to mail flyers to other owners. You serve on the Board with no compensation, why would someone spend $125.00 for postage on a job that pays nothing. In my opinion, electioneering is trying to slant someones votes, during the time the person(s) are voting. Please understand that I am totally against outside solicitors, and I have throw out a few doing so.

Any chance you are at Regatta?

Negative campaign with distorted data in it does not work. Don't even think about it!

Our election was held 10/28. I, an 8 yr. incumbent was reelected, Mabel-the 6-3/4 yr. incumbent--lost to me by 8-1/2% points and is off the Board.

Here are some reasons that MIGHT explain her defeat. Those of you who'll be in competitive races to be on an HOA Board should consider:

Her campaign Statement that went in the ballot package to all owners was unimpressive and listed no accomplishments. Mine discussed achievements

Six days before the election, she broke an HOA rule by sliding a very emotional & negative letter with personal attacks against me AND a major and a smaller budget error under all condo doors in one of twin towers. It's my tower.

In both towers--she lives in the other one--she placed a stack of these on a shelf in the mailroom.

Someone kindly showed her her errors. She crossed out the incorrect numbers with ink on all mailroom copies and penned in the correct numbers. This made her appear ignorant of our budgets, which, in fact, she is.

My professional and reasoned rejoinder only went in the mailrooms, leveled no personal attacks, but corrected her budget errors.

Mabel's approach at Board meetings is combative, ignorant, and bullying. But meetings are very lightly attended.

Our congressional district has a very ugly campaign on TV, etc. which all voters are tired of.

Congrats on win Kerry. Nice job.

Kerry,

Good job on the campaign! You've shown once again that positive outweighs negative.

The campaigns here in AZ seem a lot nastier this year than I can ever remember and way too many candidates are being financed by out-of-state interests. I already cast my ballot by mail and cannot wait for the interminable TV ads to end.

Kerry,

First off, congratulations.

In my own association, our rules state we can prohibit solicitors also, but the inference would be for outsider. There is case law that would allow Mabel to go door to door. BUT, if you intend to win, you better tell the truth. Can't hide in a Condo.