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Counting votes

Started by CindyA6 • 37 replies • 2183 views

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CindyA6 (California)
Posts: 12
Posted:
I am running for the HOA and the current board says we cannot be there when the votes are
being counted. Our CC&R's do not address this issue. Should I be fighting more for a right
to be there? Thanks!
LarryB13 (Arizona)
Posts: 4,099
Posted:
Yes.

In real world elections candidates or their representatives are normally permitted to observe the counting process. I served once as a candidate's representative when votes were counted at a precinct.

CindyA6 (California)
Posts: 12
Posted:
Thank you, the idea of asking to send a representative is great. I think I will suggest
that and see what they say.
NpS (Pennsylvania)
Posts: 4,216
Posted:
You might ask what the process is. Who counts the votes? What is the criteria for accepting or rejecting a ballot? Who decides whether a ballot is acceptable? How do they assure that counting process will be fair and unbiased?
Sikubali jukumu. Read all posts at your own risk.
KerryL1 (California)
Posts: 14,550
Posted:
Any member (Owner) of the HOA including candidates may observe the tabulating of ballots in CA. Even if in your own governing documents, it'd be in your bylaws, which discuss elections, director qualifications (if any), etc. Please read your bylaws to learn more; they vary from HOA to HOA.

A hugely valuable website has been compiled by attorneys in a CA HOA a law firm. The site is Davis-stirling.com named after the CA Civil Code statutes that protect HOA owners from abusive and ignorant Boards. In their Main Index, I went to elections. Please visit the site. All states differ in their laws about HOA elections. Here is what they say about observing ballot counting in CA:

"All votes shall be counted and tabulated by the inspector or inspectors of elections...in public at a properly noticed open meeting of the board or members. Any candidate or other member of the association may witness the counting and tabulation of the votes. (Civ. Code §5120(a).)..."

"...Who May Observe? The only persons with a legal right to observe the opening of ballots and counting of votes are candidates and members of the association. Lawyers representing candidates do not qualify. (Civ. Code §5120(a).)"

Translated to everyday talk:

Inspectors of Election are required and are selected by the Board to tabulate the ballots. See the website above for details.

"meeting of the Board or members." Usually elections are held at the annual meeting of the Members (not a board meeting). See website above for detailed definitions.

So your current Board is either ignorant or abusive since they gave you entirely incorrect Info, Cindy. Do you have any support from one or more knowledgeable persons who can help you at your HOA?

More about your situation, please! How many homes? How many on the board? How many open director slots? When is your election? Do you have a property manager?

CindyA6 (California)
Posts: 12
Posted:
Thank you! I will check out the website. More info:

We are a small mobile home park where we own the land and the mobile but have a co-operating agreement with a corporation who owns the amenities (golf course, pool, clubhouse, etc.) We pay $106 a month and there are 535 homes.

Our HOA consists of 7 members, elected every 2 years, with the 3 highest vote getters staying on the board for 4 years. We also pay $40 a year to this board, so they have approximately $20K at their disposal. We do not have a property manager. The board is to keep people in the park in line, so to speak, and to represent our interests to the "Owner" of the amenities. They are not doing a good job and are pretty much absent for 6 months on the year, as they are "snowbirds".

At a meeting the board asked for volunteers, other than candidates, of course, to handle the election. A man who has run for the board several times and lost, became the volunteer to tally the votes. I asked to attend and was told I couldn't. I'm not saying they are doing anything inappropriate, but I'm not sure I trust their process.

RichardP13 (California)
Posts: 3,868
Posted:
Cindy

I am guessing you're in the Palm Springs area, as you mentioned "snow bunnies"

Being you are a mobile home community, I don't believe the Davis Stirling Act covers your type of community. If you are incorporated, Corporation Code most likely cover some of the issues.

Is there any documents that you have for your community? CCRs or Bylaws. Does the other corporation have guideline on how election might or should be held.

Below is a link to California Mobile Home Law which may or may not cover your community.

http://www.davis-stirling.com/Portals/1/docs/2013-mobilehome-law.pdf?ver=2014-05-06-230737-317
CindyA6 (California)
Posts: 12
Posted:
Yes, Rich, PS it is! I will check out the site and I'm sorry to hear Davis Stirling Act doesn't apply to us. We are a corporation, so I'll check into that which may apply.

Yes, we have CC&R's and By-Laws and the "Owner" has no say in how we run our elections. She would want a weak board which is what we have now, IMO. She has let things deteriorate while managing to pay off 500K PLUS interest, on the loan she took to buy this place. I am mad and I'm not going to take it any more. We need to sue her to make her comply with her agreement with us. Our golf course looks like crap, the pool and other amenities are often out of service. We have no air conditioning in the club house in the summer! We are a 55+ community.

We have a lawyer on the books for 3K a year, but nothing ever gets done!! I sure hope I get elected.
RichardP13 (California)
Posts: 3,868
Posted:
Cindy

As a general rule, the rules on how the community are run would be found in the Bylaws. The Bylaws would cover how an election is conducted.

Curious, do you vote by secret ballot?
CindyA6 (California)
Posts: 12
Posted:
Voting is done by mail and I suppose it is secret??? We have to mail the votes and put our name and signature on the outside of the envelope. The actual ballot has no info on the voter, so I presume that is secret ballot. Who ever came up with that idea anyway.
CindyA6 (California)
Posts: 12
Posted:
P>S> The by-laws have one paragraph about voting and it says NOTHING about how the ballots will be opened and counted!
RichardP13 (California)
Posts: 3,868
Posted:
Cindy

If they are two envelopes involved, then it would be a secret ballot, IF the opening and counting procedure is done correctly. If that is the case, then this is exactly how HOA's in California conduct elections.

If you have a digital copy of the Bylaws, I would love to see them and I could give a better opinion. Let me know and I will post my email address here.
CindyA6 (California)
Posts: 12
Posted:
I was just looking for a digital copy and I still am!!

This is from Wikipedia:

The Davis–Stirling Common Interest Development Act is the popular name of the portion of the California Civil Code beginning with section 4000,[1] which governs condominium, cooperative, and planned unit development communities in California. It was authored by Assemblyman Lawrence W. "Larry" Stirling and enacted in 1985 by the California State Legislature. In 2012, the Act was comprehensively reorganized and recodified by Assembly Bill 805.[2]

Aren't we a cooperative? I would love to have you look at the by-laws and if you send me an email at [email protected], I'll do my best to get a digital copy.

Thanks for your help.
CindyA6 (California)
Posts: 12
Posted:
Rich, I found a digital copy!
RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By CindyA6 on 01/12/2016 9:58 AM
Rich, I found a digital copy!

My email address is [email protected]. It should take me a couple of minutes to locate the information to give an opinion.
NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By CindyA6 on 01/12/2016 9:30 AM
Voting is done by mail and I suppose it is secret??? We have to mail the votes and put our name and signature on the outside of the envelope. The actual ballot has no info on the voter, so I presume that is secret ballot.

Secret ballot does not mean secret counting.
Sikubali jukumu. Read all posts at your own risk.
RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By NpS on 01/12/2016 10:08 AM
Posted By CindyA6 on 01/12/2016 9:30 AM
Voting is done by mail and I suppose it is secret??? We have to mail the votes and put our name and signature on the outside of the envelope. The actual ballot has no info on the voter, so I presume that is secret ballot.

Secret ballot does not mean secret counting.

In the case of the OP, "secret ballot" rules do not apply or as we refer to as a two envelope system. Even that system, is not secret, if you have bad procedures.
NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By RichardP13 on 01/12/2016 11:33 AM
Posted By NpS on 01/12/2016 10:08 AM
Posted By CindyA6 on 01/12/2016 9:30 AM
Voting is done by mail and I suppose it is secret??? We have to mail the votes and put our name and signature on the outside of the envelope. The actual ballot has no info on the voter, so I presume that is secret ballot.

Secret ballot does not mean secret counting.


In the case of the OP, "secret ballot" rules do not apply or as we refer to as a two envelope system. Even that system, is not secret, if you have bad procedures.

Let's put it a different way. A two envelope system where the envelopes are opened in secret is a farce. (See my first post to this thread).
Sikubali jukumu. Read all posts at your own risk.
RichardP13 (California)
Posts: 3,868
Posted:
In reviewing their Bylaws, they fall under Corporation Code and there is no standard for counting ballots at an open meeting such as what Davis Stirling calls for.
CindyA6 (California)
Posts: 12
Posted:
Well, I certainly agree it is a farce, but I really don't know what to "cite" to convince them to change the procedure. The election is upcoming on Feb 4 and ballots have been sent out. There is nothing in the by-laws that compels them to have an open meeting and vote tally, so I think I am out of luck.
NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By CindyA6 on 01/12/2016 12:05 PM
Well, I certainly agree it is a farce, but I really don't know what to "cite" to convince them to change the procedure. The election is upcoming on Feb 4 and ballots have been sent out. There is nothing in the by-laws that compels them to have an open meeting and vote tally, so I think I am out of luck.

Why it's a farce:

The purpose of a two envelope system is so people who shouldn't know don't know whose ballot it is.

The way it typically should work - the envelopes are given to an independent person who is responsible for opening, verifying eligibility, and announcing/tallying the votes. As each vote is announced/tallied, only that independent person sees whose vote it is. That independent person has no stake in the outcome. Everyone else who's present can verify for themselves that the count is correct - but they don't know whose vote it is.

The way it could work - the MC collects the envelopes and gives them all to the prez. The prez opens the votes - decides which votes should be discarded or "corrected" - and makes a mental note of who gets treated nicely in the coming year and who needs to be put in her place.

The key benefit of the two envelope system is to protect the voter from disclosure and retaliation. You may have a two envelope system, but unless you know what happens during the tallying process, you might have a real secret ballot or you might have a farce.

You're not going to find some set of master rules somewhere. But if you think about the purpose of the two envelope system - and whether there is opportunity for abuse or not - you know if you have an honest and unbiased system that protects homeowners from retaliation.
Sikubali jukumu. Read all posts at your own risk.
RichardP13 (California)
Posts: 3,868
Posted:
A one envelope system could work just as efficiently as a two envelope system, done with specific procedures.

In California, no Board member or family member of any running candidate could serve as an inspector or "independent" party. Unless an association has election rules, no management company or attorney under contract could serve as inspector.
NpS (Pennsylvania)
Posts: 4,216
Posted:
Here's a link to a set of procedures used by a college in Austin, TX. Simplest description I could find for you.

https://www.austincc.edu/admrule/3.02.003Guideline.htm
Sikubali jukumu. Read all posts at your own risk.
CindyA6 (California)
Posts: 12
Posted:
Thank you! That adds perspective for me. The person who is opening and tallying the votes is, IMO, unbiased. He has run for the board and lost last time by 6 votes. He is not a candidate or board member at this time, but I feel he "agrees" that there could be some "funny business" going on and that is why he volunteered.

You can bet, the process will be reviewed and clarified before the next election.

CindyA6 (California)
Posts: 12
Posted:
ok so I JUST viewed that link and that IS how it should be done here in my community! Thank you so much.
KerryL1 (California)
Posts: 14,550
Posted:
The Austin Example is very similar to the Davis-stirling requirements in CA HOAs (which exclude mobile home communities, as you know.)

There is no way to match who voted for whom. Owners can review the check list of who did vote, they can examine ballots, which must kept a year. I don't think we're required to keep the outer envelope with the Owner's printed name, signature and HOA address on it.

In your case, Cindy, convincing your board to have better election procedures might be difficult.
RichardP13 (California)
Posts: 3,868
Posted:
Actually ALL election material(s) must be retained for one year.
KerryL1 (California)
Posts: 14,550
Posted:
Please cite your source, Richard. I don't know this statute. Might be a good idea, but is it required in CA? Thanks.
RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By KerryL1 on 01/13/2016 1:13 PM
Please cite your source, Richard. I don't know this statute. Might be a good idea, but is it required in CA? Thanks.

§ 5125
KerryL1 (California)
Posts: 14,550
Posted:
I had a minute to check, Richard, and only see that ballots must be kept one year per CA Civ. Code 5125.
RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By KerryL1 on 01/14/2016 11:06 PM
I had a minute to check, Richard, and only see that ballots must be kept one year per CA Civ. Code 5125.

I figured you would say that after you looked.

In the contexts of how it was written, all election material needs to be keep until the statue for challenging runs out, which is 9 months, per Corporation Code §7527. "Ballots" would include the actual ballot, the voting instructions and the two envelopes.

For instance, if an association has 100 members and quorum is 51, there are 26 BALLOTS on file, was quorum reached in order to open the envelopes. If you had 51 valid, signed outer envelopes then the answer is yes.

KerryL1 (California)
Posts: 14,550
Posted:
Can you cite the exact wording from the Corps Code Richard? And doesn't the one-year specified by the Davis Stirling statute trump the CA. Corps Code of only 9 Months?

It makes sense to me to keep the outer envelope since they're signed by the owners. But in the double envelope system required in CA, the inner envelopes are blank, yet you say we should keep them??
CindyA6 (California)
Posts: 12
Posted:
well, hmmmm we don't have an inside envelope, we have one envelope with the voter's name and address and then the ballot inside. I thought the inspector is supposed to assure that the voter was an "official voter" from a list of voters, put it aside, and then tally the votes, with no one else seeing who someone voted for. Will that not work and is that NOT a secret ballot>

Thanks in advance.

BTW, I got the president to say he would allow me to witness the counting, but I still have to talk to the inspector.
NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By CindyA6 on 01/15/2016 12:27 PM
well, hmmmm we don't have an inside envelope, we have one envelope with the voter's name and address and then the ballot inside. I thought the inspector is supposed to assure that the voter was an "official voter" from a list of voters, put it aside, and then tally the votes, with no one else seeing who someone voted for.

1. Inspector has list of voters.
2. Inspector checks envelope to verify person is on list. If yes, ballot goes in pile. If not, ballot is discarded.
3. Inspector opens pile of ballots. Counts and announces.

Sikubali jukumu. Read all posts at your own risk.
FredN (California)
Posts: 87
Posted:
Quote:
Posted By KerryL1 on 01/15/2016 10:59 AM
Can you cite the exact wording from the Corps Code Richard? And doesn't the one-year specified by the Davis Stirling statute trump the CA. Corps Code of only 9 Months?

(e) In the event of a conflict between this article and the
provisions of the Nonprofit Mutual Benefit Corporation Law (Part 3
(commencing with Section 7110) of Division 2 of Title 1 of the
Corporations Code) relating to elections, the provisions of this
article shall prevail.

SHALL PREVAIL .... means nothing to Association Attorneys Everything is designed for a lawsuit.....No Published opinion = Lawsuit waiting to happen.
KerryL1 (California)
Posts: 14,550
Posted:
I'm glad you'll witness the tabulation, Cindy.
NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By KerryL1 on 01/16/2016 1:16 PM
I'm glad you'll witness the tabulation, Cindy.

Yep.
Sikubali jukumu. Read all posts at your own risk.
FredN (California)
Posts: 87
Posted:
Murphy v. Anaheim Hills Planned Community Assoc. CA4/3 filed 1/14/16 unpublished

Here is a recently unpublished opinion on elections in CA.

They challenged the election under CC 7616 which would be the nine month statute.

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