Recount and Reelection Question - Time Sensitive

Started by GaryW11 • 15 replies • 1694 views

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GaryW11 (New York)
Posts: 19

Posted:

I am on a HOA community board where we recently had voting for one additional board position and one vacancy. At the election candidates submitted open absentee vote forms from residents. These constituted over 60% of the voting. They even went out and solicited extra votes to make sure we had Quorum at the beginning of the meeting prior to the election. Since the vote we have had multiple residents question the validity of these votes. After doing some research on Texas HOA code I learned that (1) absentee votes must be submitted by the direction on the for (i.e. mail, fax, or emaik) by the date on the form and (2) the candidate can in the election may not tabulate or otherwise be given access to ballots cast. Therefore it is my opinion that all these votes should be voided since they were turned in late and by the candidates that were running. If this is the case here are my questions:

1. To execute the action should I request a revote or simply ask our Management Company and attorney to nullify the previous election results?
2. Since this will take the voters to below Quorum would it be a new election?

Hopefully someone has seen something like this on their board or elections.

Thanks,
Frank

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By GaryW11 on 10/11/2015 6:55 PM
1. To execute the action should I request a revote or simply ask our Management Company and attorney to nullify the previous election results?

Unless Texas has some really unusual laws, the final authority rests with your board. The management company and attorney may offer advice but neither of them have the authority to nullify anything. This is a decision that only the board can make.

You wrote that "we have had multiple residents question the validity of these votes." Normally, elections and election results can be challenged only by the candidates. Are any of them crying foul? Is anyone claiming that if proper procedures had been followed that there would have been a different result?

Quote:

2. Since this will take the voters to below Quorum would it be a new election?

It sounds like a toss-up as to whether to take another vote. Keep in mind that you are not the United Nations; the sun will rise in the east tomorrow morning regardless of how much you agonize over this.

Before you hold your next election (or re-do this one) you should clarify the rules regarding absentee ballots. From the sounds of it, no one - that includes members, candidates, and the board - had a clear idea of how the absentee ballots were supposed to be submitted.

There should be clear instructions on the ballot itself as to how, where, and when to submit it.

GaryW11 (New York)
Posts: 19

Posted:

In Texas any member can request a recount. The question becomes do we allow the votes that were submitted late and in person versus mail,email, or fax to be counted as the candidates hand delivered them. Here are two Texas laws I have found:

TABULATION OF AND ACCESS TO BALLOTS. (a) Notwithstanding any other provision of this chapter or any other law, a person who is a candidate in a property owners' association election or who is otherwise the subject of an association vote, or a person related to that person within the third degree by consanguinity or affinity, as determined under Chapter 573, Government Code, may not tabulate or otherwise be given access to the ballots cast in that election or vote except as provided by this section.

VOTING; QUORUM.
(c) A solicitation for votes by absentee ballot must include:
(1) an absentee ballot that contains each proposed action and provides an opportunity to vote for or against each proposed action;
(2) instructions for delivery of the completed absentee ballot, including the delivery location; and

So based on these laws they should have been sent in ahead of time (proxy/absentee deadline was two days prior to election) and never handled by a candidate once complete. In my opinion this would void these votes. Residents are questioning the validity of these votes since they were such a large percentage of the total votes and were submitted at the election.

RichardP13 (California)
Posts: 3,868

Posted:

In my opinion, the votes, if actually legitimate, should be counted.

In California, we have somewhat clear rules for elections. One, is we have an independent inspector of elections. They, not the Board, have final say on an election.

What wasn't mentioned was WHAT instructions were actually given on the ballots. Were they clear or did the homeowners have to interpret the Bylaws or Texas law on their own.

When did the polls close as stated on the ballots. Do you allow write in candidates OR nominations from the floor. IF, you allow nominations from the floor, then, IMO, the ballots were not late.

It sounds that the Board is challenging the results because it didn't go as planned. Sounds like they weren't expecting quorum to be reached, so maybe the Board could appoint on their own without membership involvement.

Sounds like some homeowners, for a change, got off their butts and started a rally.

GaryW11 (New York)
Posts: 19

Posted:

Quote:

Posted By RichardP13 on 10/11/2015 9:23 PM

What wasn't mentioned was WHAT instructions were actually given on the ballots. Were they clear or did the homeowners have to interpret the Bylaws or Texas law on their own.

When did the polls close as stated on the ballots. Do you allow write in candidates OR nominations from the floor. IF, you allow nominations from the floor, then, IMO, the ballots were not late.

It sounds that the Board is challenging the results because it didn't go as planned. Sounds like they weren't expecting quorum to be reached, so maybe the Board could appoint on their own without membership involvement.

Sounds like some homeowners, for a change, got off their butts and started a rally.

The instructions were plain that they had to be submitted two days prior by mail, email, or fax on the ballot that was mailed out. That was very clear. In regards to the absentee ballot the candidates and residents probably did not know that they could not physically turn them in since they were actual votes. The question that was raised to me by residents at the election was how did we authenticate these votes since the candidates had them in their possession. Did they turn in all votes they collected, or only ones that had votes for them? I think that is why the law about "Given Access" to ballots is in place in Texas, to protect other candidates from fraud. Last year we did meet Quorum through proxy voting, but our Management Co. Agent was very diligent about making sure all candidates that solicited proxy votes turned them in by the deadline and had them properly filled out. Since residents that are not on the ballot questioned the voting results and ballots accepted, I felt it was my duty as a board member to act. And no I was not up for re-election.

RichardP13 (California)
Posts: 3,868

Posted:

Gary

Does the association allow nominations from the floor?

GaryW11 (New York)
Posts: 19

Posted:

Quote:

Posted By RichardP13 on 10/11/2015 9:45 PM
Gary

Does the association allow nominations from the floor?

Yes

RichardP13 (California)
Posts: 3,868

Posted:

Gary

You mentioned you reached quorum last year through proxies. Did you have them this year? If so, are they general or directed proxies?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Gary,

Were the instruments carried in actual absentee ballots or simply a general/directed proxy?
They are two different things.

Proxies simply give one the authority to vote on someone's behalf.
Ballots are the actual vote.
Absentee ballots are also the actual vote.

One thing to remember is that every proxy requires a ballot, but not every ballot requires a proxy.

Unfortunately, many Assocaitions may treat proxies as ballots. That is improper. This may be due to a desire to save time or a failure to understand what a proxy is and how to handle them. Rarely is it done with an intent to deceive or commit fraud.

If you request a recount (which, as I suspect you know must be made within 15 days of the meeting), and it is determined that a quorum was not present, then those who were serving would stay in their position unless they resign (see section Sec. 22.208 (b) of the BUSINESS ORGANIZATIONS CODE, NONPROFIT CORPORATIONS.

GaryW11 (New York)
Posts: 19

Posted:

We had general proxies last year turned in. Ballots were handed out to the member that was voting for the proxy and they selected the candidates for them. This year we did not have any proxies turned in. All votes were absentee ballots, but hand delivered at the meeting after the deadline by candidates.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By GaryW11 on 10/11/2015 8:25 PM
In Texas any member can request a recount. The question becomes do we allow the votes that were submitted late and in person versus mail,email, or fax to be counted as the candidates hand delivered them. Here are two Texas laws I have found:

TABULATION OF AND ACCESS TO BALLOTS. (a) Notwithstanding any other provision of this chapter or any other law, a person who is a candidate in a property owners' association election or who is otherwise the subject of an association vote, or a person related to that person within the third degree by consanguinity or affinity, as determined under Chapter 573, Government Code, may not tabulate or otherwise be given access to the ballots cast in that election or vote except as provided by this section.

VOTING; QUORUM.
(c) A solicitation for votes by absentee ballot must include:
(1) an absentee ballot that contains each proposed action and provides an opportunity to vote for or against each proposed action;
(2) instructions for delivery of the completed absentee ballot, including the delivery location; and

So based on these laws they should have been sent in ahead of time (proxy/absentee deadline was two days prior to election) and never handled by a candidate once complete. In my opinion this would void these votes. Residents are questioning the validity of these votes since they were such a large percentage of the total votes and were submitted at the election.

My interpretation of the first statute is much different than yours. You seem to believe that once a member puts his X in the box that the candidate may not touch the ballot. I interpret the statute to mean that the candidate may not take part in counting and may not handle the ballots after they have been cast. I see nothing in that statute that would prohibit the candidate from hand-delivering the ballot to the polling place.

The second statute places the responsibility on the association to provide "instructions for delivery of the completed absentee ballot, including the delivery location." Since you had so many members who handed their ballots to the candidates, my first suspicion is that the instructions were not clear.

In my state, we are required to allow both absentee ballots and in-person voting. We use the same ballots for both. We have a deadline for mailing in ballots that is a few weeks before our annual meeting; if a member misses the mailing deadline he can deliver his ballot to the meeting, where it is counted (after verifying that the member did not already vote) along with the absentee ballots. I raise this point only because it sounds like you have no means of accepting completed ballots at your meeting.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Ahh,

Sounds like a misunderstanding in procedures due to a change in the procedures.

I would suspect that the Secretary or Election Committee didn't want to exclude a ballot because of a failure to get the word out better.

Based on this, and what you provided, it sounds like the election could be challenged. Expecting that you were a candidate, you would certainly have standing to challenge the election. If they can not identify what ballots were returned by whom and when, it will be harder to decipher what the result may have been had proper procedures been followed.

Question would now become, is this an issue worth causing a reelection or an issue to simply bring forward and use as a lesson learned to correct the situation in following years?

Only you can make the determination on how you wish to handle it.

On one side, you know how the members wanted the vote to go (as all votes were counted).
On the other side, you may or may not be able to alter the members desire with technicalities to void some of the ballots or the whole election.

If I were making the decision, I would challenge the election but only to stress the lesson and, once learned with procedures in place to correct the issue for next year, remove the challenge. Of course, such a process may also be done with a few letters vs. an official challenge to the election results.

GaryW11 (New York)
Posts: 19

Posted:

Last year we did not allow any proxy or absentee votes to be accepted the night of the election. This year one person submitted 60 votes. This was more than 50% of the votes. I think the entire room didn't realize they were proxy and the board never voted on allowing them to be turned in late. Also I don't think anyone realized they were all absentee. I for example spoke to a neighbor who said the candidates simply asked him to sign the form and they would do the rest. I think it looks like a sham to our residents on how they were elected.

TimB4 (Tennessee)
Posts: 21,059

Posted:

I found nothing in the Corporate laws that address when proxies must be turned in, only that they are allowed (unless prohibited by the certificate of incorporation or bylaws), and that they last for 11 months. Presenting a proxy form when one checks into the meeting would be reasonable and, unless your bylaws have some language in them to specify when proxies must be turned in, should be accepted.

Absentee ballots are different.

RichardP13 (California)
Posts: 3,868

Posted:

I will share a story that is along the lines of 60 votes that were turned in at the last minute.

In 2010, after issues with a cancelled election, several people in my association went about re-writing the Bylaws. We were an association of 317 homes, quorum was 159 and to pass there needed to be 162 affirmative votes.

Ballots were mailed 30 prior to the vote. We had a group of 12 going door to door for about 10 days, encouraging, explaining and collecting ballots. Two of the three inspectors were residents here. The collected ballots were turned over to the inspectors who were walking with us. We kept tabs on who had voted and who had not. None of the ballots we collected were turned into the management company.

Come meeting night, the management company, the Board in place and the attorney all showed up to cancel the meeting as they had done 9 months prior. The meeting started at 7 and polls closed at 7:15. At 7:10 one of the inspectors showed up with a backpack containing 200 ballots.

The look on the management company, the Board and the attorney was....PRICELESS..The Bylaws were approved 235-5.

GaryW11 (New York)
Posts: 19

Posted:

The votes turned in were all marked as absentee votes. That's why residents are questioning the authenticity.

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