Improper election of HOA Board Member

On Monday, June 12 our HOA counted Ballots for a position of Board Director. 6 general members witnessed the ballot counting as well as the Inspector of Elections (a member of the HOA appointed by the Board), and two Directors. 47 qualified ballots were counted and then returned into the ballot box. The meeting adjourned and the locked ballot box was removed from the room.

According to the HOA’s attorney, at the next day’s Annual Meeting and follow-on Board meeting, 82 additional ballots appeared about an hour or two after the Monday count. The new count was now 129 ballots in s second count. The Mutual then mailed election results citing Davis-Stirling Sections 5010 and 5020 and telling us everything was legal.

Our HOA’s By-Laws require that 3 members witness any count of secret ballots. This second count was not witnessed by 3 Members. So the Mutual’s By-Laws were not followed in the second ballot count. See Davis-Stirling Section 5020 (a):

“5020. (a) All votes shall be counted and tabulated by the inspector or inspectors of elections, or the designee of the inspector of elections, in public at a properly noticed open meeting of the board or members.” The second ballot counting had no proper notice, was not an open meeting for board or members, and had no member witnesses.

Members have protested this improper election to the Board and to its attorney. However the Board refuses to discuss the matter other than to say that the candidate was elected.

What recourse do we have?

Usually, once the meeting was adjourned, the election process ends. This would be during a live election and would include proxies, mail-ins. All ballots are counted at one time at the meeting. The results can be announced by the chairperson at that time.

Why additional ballots came in after the election process was over is a mystery - unless this a mail-in election and someone forgot to get the ballots in the office or wherever.

You need to find out why and how these late ballots came in.

Never heard of a "second ballot count" unless there was a challenge by Members.

The "why" does not matter. It may be interesting in the autopsy of this but not the point. The point is that the board and its attorney is rogue and is ignoring its own governing documents and state law. Unfortunately, this is all too common.

I would immediately send a certified letter to the board disputing the action. You said that members had protested to the board and the attorney. Was that in writing? Perhaps they will respond, but based on your description here, I doubt that they will.

After that, do you have a state regulatory agency with authority over election dispute? If yes, I would suggest the a dispute be filed immediately. Usually, there is a timeline for filing a dispute which must be followed.

Following that, I would write a complaint about the attorney behavior to your state's professional bar association, carefully documenting the role and activities of the attorney in your election.

You now have a suspicious cancerous lesion. Nip this in the bud or you may have an environment in which members will not have confidence in the validity of the elections and this will metastasize to everything else the HOA does.

I expect that the poster intended to say sections 5110 and 5120 as there is no section 5010 or 5020

Thanks John, I missed that.

I suspect that polls were not officially closed until the annual meeting was held.

In CA, JohnM, The Annual Meeting and Election are supposed to be held at the same time. Is it possible there was not a quorum the first night and the Election Rules permitted adjournment to the 2nd night? If an adjournment date was written on your ballot materials, I guess this is a possibility. But it still doesn't account for the lack oversight by 3 Assoc. members.

CA requires Election Rules that must be followed. As Richard, a CA PM points out, many or most HOAs do not have them. Does yours?

Is your "HOA's attorney" actually an HOA attorney or some other kind? If an HOA attorney, I'd say s/he is completely inadequate.

I lean towards Gwen's advice re: a certified letter to both your Board and the HOA's attorney. There are too many irregularities.

Do you have a property mgr.?

To Tim's question: did the 2nd tabulation change the outcome of the election??

Ignore the Bylaws requiring # witnesses who must be present at the count? In what alternate universe is that acceptable?

I have no idea exactly how these Bylaws are written for elections, but I have never heard of opening ballots prior to the Annual Meeting/Election Day to "take a peek" at the results. This violates fair play. The reason it is probably not written anywhere is because it does not make any sense. It gives an advantage to those who peeked ahead of the Meeting to enable focused remedial recruitment in advance of the meeting.

Are there ANY corporate Bylaws that permit a sneak peak prior to the Meeting to determine a quorum or for ANY reason? Does anyone know of any Bylaws that permit that?

I will stand by the "rogue" description in the absence of proof that the laws and bylaws were followed. There is strong evidence that, at the very least, the witnessing component of the election was violated. When Members protested, they were ignored. That does not pass my sniff test for a competent, responsive, accountable and transparent board.

Richard you have become nasty.

The OP stated:

Our HOA’s By-Laws require that 3 members witness any count of secret ballots. This second count was not witnessed by 3 Members. So the Mutual’s By-Laws were not followed in the second ballot count. See Davis-Stirling Section 5020 (a):

Ballots must be under the control of the Election committee until the Annual Meeting. They cannot be handled or fondled by Directors prior to the meeting. There is no second count provided in the Bylaws for any reason. This is ballot tampering.

Did you make this up? Have you seen their Bylaws? What Election committee? Not sure what you do in Florida, but in California we use inspectors of election.

Ballots are considered to be the secret ballot, the inner envelope and the outer envelope which must have the name, address and signature of the voter. We count and verify "ballots" prior to the actual meeting ALL the time. If we know a ballot hasn't be signed, we give the voter an opportunity to do so.

It is nice that you do this for a living, but we all can read and comprehend. It is also OK if you are comfortable with a distasteful style of conversation, but you will be called out on it.

The code number copy/pasted from the OP's original post was previously corrected and does not require further clarification.

I can only assume the OP was correctly stating the HOA law in the complaint here. If the Code specifically defers to the Bylaw or it provides other than what the OP posted in the complaint, I assume that Bylaw governs as OP stated. That is referred to as evidence in framing the best possible evaluation of board action on the limited information provided. Obviously, OP complained about the behavior and this was considered serious enough for MemberS (plural) to PROTEST to the Board and Attorney--and they were ignored. So, the evidence is that there was some impropriety or deviation from election protocol that is not being explained to Members for some reason. Smoke.

In my state, aside from disclosure of records disclosure, the Number One abuse is election fraud. So, my index of suspicion is very high in this area.

I have yet to see anything in the California Code that permits Directos handling ballots prior to the Annual Meeting-for any reason.

OP Bylaw specifically states "witnesses" (or observation by third parties not involved directly in an election). This is the HOA Bylaw and it is unknown what the Inspector role is as described in the Code, or if this is meant to be a corollary role of a "witness". Generally, states do not refute bylaws but only supply guidance when governing documents are silent or offer statutory law where a vacuum exists.

Election Committee by any other name is probably an equivalent reference to "anyone/group appointed to handling ballots" other than the Directors. These are not terms and concepts peculiar to Florida versus the rest of the corporate world. I have never heard any HOA or Condo law where Directors are permitted to handle ballots prior to the Annual Meeting--for any reason.

Really reaching here, but I'll respond: Copy/paste quotes are COPIED and pasted. Not Copied, Edited and represented as an original post.

I don't know why you are not reading the OP, who wrote:

On Monday, June 12 our HOA counted Ballots for a position of Board Director. 6 general members witnessed the ballot counting as well as the Inspector of Elections (a member of the HOA appointed by the Board), and two Directors.

The OP specifically said"...and two Directors." Again, that was 6 members, an appointed Inspector and TWO DIRECTORS. 8 persons.

Again, the Bylaws require 3 witnesses to count ANY SECRET BALLOT, according to the OP. That is a Bylaw. Notwithstanding that there is no provision that has yet been cited that a second count was authorized by any governing document, OP stated that the Bylaw was not witnessed by 3 persons on the second (final) count.

This process was protested by more than one member and the board and its attorney ignored the Members' request for explanation.

Anyway you want to slice and dice the event, it "smells" and needs an explanation by the board, at the very least, as requested. I would never have bias in favor of the controlling self-interests of the association--especially not with regard to the impact of election fraud.

If you wish to err in favor of the Association, that is your filter.

At this point, I see no further benefit to discussion. No one ever said a witness could count ballots.

OP posted:
Our HOA’s By-Laws require that 3 members witness any count of secret ballots.

Note "witness any count of secret ballots." Not count.

You are obviously talking about a different subject. And I didn't even have to be insulting!

Now, since JohnM isn't getting back to us, I'm thinking he misunderstood his HOA Bylaws, but only he can clear this up: JohnM, give us the exact Bylaws wording that states there must be 3 "witnesses" to observe the counting and tabulation of actual votes. I do think it’s possible, but please verify. We know that in CA HOAs, there must be 1 or three inspectors of election and they're appointed by our board from among Owner volunteers.

Why were there no “witnesses” at the actual Annual Meeting? What did the letter in your ballot materials state about when votes would be tabulated? Did you attend this meeting? Per Civil code, the tabulation and winner(s) should have been announced at this meeting.

Civil Code states: “No person, including a member of the association or an employee of the management company, shall open or otherwise review any ballot prior to the time and place at which the ballots are counted and tabulated.” So, John, is it true that the day before the Annual Meeting, actual ballots were counted? Or unopened ballot envelopes?

5020(a) only says that it’s OK for there to be a count of the unopened envelopes prior to the Annual Meeting & Election. Our Board votes every year to have the PM be the custodian of the unopened secret ballots, and she simply keeps a running tally of how many have valid outer envelopes (owner signature, property address) that she’s deposited in a locked box each day. Any HOA Members can inquire about his tally. Is this what happened on the 12th—the unopened envelopes were counted?

If your Bylaws do not actually say three “witnesses” MUST be present for tallying the votes at the Annual Meetings, and if unopened envelopes were counted on the 12th, then you’re off base with your concerns.

Who was the custodian of the unopened ballots when they started coming in?

Do share what your role is in this election, JohnM—candidate?

Richard, JohnM claims, "The second ballot counting had no proper notice, was not an open meeting for board or members, and had no member witnesses," which I almost missed again. As you very well know, Richard, the Annual Meeting and election must be noticed, and we place the date, etc. in the election materials we send to all Owners. That date also is publicized on our bulletin boards, e-blasts, etc.

JohnM does make it sound like no one knew about this encored meeting on the 13th--that's shy I want to know the wording in the election materials that went to owners.

JohnM does NOT say the "witnesses" count the votes, Richard, but that they witness the counting of the votes, which should be done by the inspector(s) of election.

Richard you are absolutely right! I do not know much about California's laws and those laws may be very different from "the way things are done" in CA HOA's. What I am more familiar with is principles of election and meeting statutes that are fairly common across most state not-for-profit corporations.

For the particulars, I and others rely on the knowledgeable input of those in the state of reference. I appreciate learning about different states' laws through citations that guide the application of conduct for that state. I am interested in reading the citation in the law which relates to identification of the superior ruling document, who has control of ballots prior to Annual Meeting, counting ballots outside the Annual Meeting, roles of witness and "inspector" and the applicable HOA Bylaw and Rules.

I did not mix up witness counting with witness observation. The OP did not represent that the witnesses counted ballots; only that the witnesses were to be present during the counting of secret ballots. I don't know where you got this mixed up as there was never any confusion on my part.

At no time did I discuss Meeting Notice; however, it would appear that the Monday meeting was non-noticed. OP said the ballots were counted and QUALIFIED. To be qualified, the Ballot envelope had to have been opened. If the ballot was opened, the results could have been appreciated by those present, including 2 directors.

Reportedly no business was conducted at the Monday ballot sneak peak/pre-count. It is not known if there was a quorum of Directors which would have required Notice to Members. The second/final count at the Annual Meeting the following day was presumably noticed. OP also stated that the required 3 witnesses were not present for the second/final count. The second count conducted revealed a marked increase in submitted ballots in the short interim between the 1st and 2nd countings. It is unknown exactly when the cutoff was for voting.

I have never heard of any Bylaws or statutes permitting two countings of election Ballots. If CA allows opening ballots ahead of the Annual Meeting "to qualify" ballots, please provide the citation. My experience is that the Ballot box remains under the control of a "disinterested third party" who is not an attorney, director or management company, until the Annual Meeting is called. The ballots are opened, the ballots validated (qualified) and votes tallied by the Members appointed to the Election Committee during the meeting in front of all members present. This seems like an obvious safeguard to prevent ballot tampering.

Absent all the information about California law and the HOA Bylaws, and in light of the protest of the OP along with the reported unusual sequence of events, my suspicion remains high that there was ballot tampering. Call the board rogue or not; there were focused questions on the table directed to attorney and directors which they refused to answer. That is, in itself, an ominous sign.

I suspect that Florida is probably not drastically different in the way it structures elections which, by and large, defers to Bylaws to control the protocol of the election process and Annual Member Meeting.

The point of confusion seems to be the counting of ballots versus opening them. Asking how many ballots have been received versus opening them are two different situations. I believe the OP said the ballots were counted. He did not say they were opened. If so, no harm, no foul.

The OP also did not clarify the polls had closed then more ballots showed up. I believe the polls were open until the Annual Meeting (the next day).

Also the discourse between Gwen and Richard is a bit much. On one hand we have a professional property manager in CA citing CA law which is where the OP is. On the other hand we have an owner who is notorious for distrusting BOD's and with her experience in FL. As the OP is from CA, I believe the decision goes to Richard.

@John: I believe you are mistaken. OP stated that ballots were counted and qualified. To be qualified, the envelopes had to be opened.

@Tim: I agree that the OP did not give quite enough information to make a conclusion but enough to raise doubts. Information has been not been forthcoming from the self-styled expert except coulda/woulda theories. Further discussion is fruitless without more detail from the OP and without the applicable laws cited.

@Richard: I was not aware that CA treated HOA (election) Bylaws as useless and unnecessary due to "age"--that is amazing! It's a good thing that you are "on it" as it appears that California and Florida share a characteristic ie no regulatory department for HOA's. Maybe your fix can be adopted by other states as a model.

If you want to hold yourself out as a self-appointed expert to advance HOA reform, you might consider grooming your conversational style for "credibility enhancement". I have had a bellyful of bully-speak in my HOA and turn a deaf ear to arrogant experts.

Gwen

You stated

"@John: I believe you are mistaken. OP stated that ballots were counted and qualified. To be qualified, the envelopes had to be opened."

I'm not certain your statement regarding the determination of qualified ballots is accurate. I'm too many years gone from California for my previous experience to be of any value however especially as it predates Davis Sterling.

I believe Richard and others have posted words about a "double envelope" ballot process with names/addresses/signatures involved.

Without spending a lot of time researching previous posts, my impression from this and other discussions is that a ballot still enclosed in its double envelope wrapping can be examined from the outside to determine whether or not it is qualified (valid??) without opening either envelope to examine the ballot itself.

As others have pointed out, counting a physical ballot submission, and examining its packaging to determine whether or not it is qualified, is not the same thing as tabulating the votes the ballot(s) represent.

I could be completely incorrect about my impression, if so I would appreciate Richard or someone else with California experience telling me so.

Yes, you are correct, Bill. Unfortunately, the OP used the word ballots instead of sealed envelopes. In CA, the "outside" sealed envelope that's retired to be counted must contain the Owner's name, HOA property address and owner's signature. Lacking those, the envelope isn't even opened because it does not qualify--it's not valid.

In CA, an HOA's Bylaws certainly do matter unless Davis-Stirling contradicts them. Re: elections, the Election
rules required since '06 do NOT trump the Bylaws unless the Election Rules contain verbiage from the D-S statues.

(There are no Election Committees in CA HOAs, but many Bylaws require Nomination Committees. They, however, have nothing to do with tabulating the votes, so far as I've seen.)

To me the crux of the matter still is the OP's citation: “5020. (a) All votes shall be counted and tabulated by the inspector or inspectors of elections, or the designee of the inspector of elections, in public at a properly noticed open meeting of the board or members.”

The OP then insists: "The second ballot counting had no proper notice, was not an open meeting for board or members, and had no member witnesses." IF he's correct, the election is tainted.

I now more than ever believe that the OP made some errors and is refusing to correct them. Too bad....

I suspect he means that the Board is required to permit Assoc. Member witnesses to observe the ballot tabulations. Instead he interpreted that to mean that witnesses are REQUIRED to observe the tabulations to make the election valid.

You should have received an email when the thread was replied to, letting you know there were replies.

Based on clarification from the OP, I would invalidate the election because of an umber of issues.

1) Ballots were opened on the incorrect date. If notice was for June 13th, that is the date ballots can be verified and then opened.

2) What is quorum for the annual meeting based on? no quorum requirement, 10%, 25% or a majority of owners. If it is a majority of owners, and there were 128 or 129 ballots received, the original 42 ballots DO NOT constitute a quorum and THEREFORE ballots cannot be opened, no ifs, ands or buts. You DO NOT open ballots to be valid. Ballots are validated from the outer envelope, whether there is a name, address AND signature.

3) Forget the "procedural" error, ballots were opened PRIOR to the announced meeting.

Your election didn't happen. Your only recourse, Small Claims Court. Each screw-up is $500.00 each. I count at least 4. That's $2000.00. Cost of filing is less than $100.00. The Association CANNOT have an attorney present, only Board members or management company. The attorney can only be present if the Association loses and appeals.

I think Tim is right, just throw out the rules and, as Melissa points out, do the best job you can.

Great advise.

John: Thank you for amplifying your initial post here.

Richard has a good point. The small amount of money should be spent to send a firm message to your board, attorney and management company. Elections are the most important inclusive and transparent business of an Association and procedures should be scrupulously followed. The board made several SERIOUS procedural errors and attempted to elude discovery by omission until pushed by protest of Members at which time they Mea Culpa'd. There needs to be a clear message to the board now and into the future and the lesson is worth spending of a couple thousand bucks.

Get the management company and attorney to cough up some dough to pay their fare share of the screwup and associated penalty court costs. And then, get a new attorney.

Look, the options are:

A) Spend money, time and energy to redo the election (notice requirements, mailings, ballots, etc.). Most likely - same result.

B) Spend much more money, time and energy then option A to go to court, which (based on Richard) invalidate the results and cost the Association an additional $2,000 on top of expense defending itself. The Association will then have to spend additional money, time and energy to redo the election (i.e. option A). Most likely - same result.

Granted, options A and B will certainly teach lessons and have procedure followed.

OR

C) Since the results didn't change between the two tabulations, Realistically, lean the from the experience (same result as Options A or B) and put in place better procedures so the mistake doesn't happen again.

This is not national politics.

The choice is yours. How much time, energy and money do you want to spend on this (don't forget your share of the Association costs)?

You can be realistic (from my perspective) or dot all the i's and cross all the t's (as I suspect is Richards perspective of this issue).

And we come full circle.

Some might say this is the way it starts. I doubt this is the first time this HOA has engaged in unlawful actions. It sounds like the process is already advanced beyond the learner stage. Corruption of elections is an ominous later sign of systemic disorder.

My HOA started its corrupt ways by ignoring punctuation and ending sentences in prepositions. No one challenged them; it seemed too picky to hold them to the dotting i's and crossing t's. Over time, they disregarded the construction of the English language! Attempts were made to correct them, including two lawsuits which they lost and cost nearly $200,000 in legal fees for the owners to pay. Now, the entire English language appears to be on its way out and soon, they will be speaking in tongues.