Election for open Board seats - was it 2 or 3?

Start the whole process over!

I would read the governing documents. It may be as simple as the BOD appointing a replacement until the next meeting. In our HOA, we wold have just asked for nominations at that meeting and taken a vote, so long as there was a quorum.

Welcome to the Forum, Ron. I tend to agree with Richard. But don't feel confident that your HOA should hold hold an election for all three seats. Still, if Owners have an opportunity to run for the Board knowing there are actually three available seats, you might have more candidates for owners to choose from. Maybe you'd be one of them....

Anyway, Boards may not make decisions on HOA business without the item being on on a agenda that's posted 4 days before a meeting. This means they should not have voted to accept a third nomination from the floor as that wasn't an agenda item.

Your bylaws, as you point out, also direct your board how to deal with vacancies that occur, but this was not.

In CA, HOAs are supposed to also have Election Rules. We know that all do not, but does yours? Can they help?

In fact, and I'm not a suspicious person, I would not trust the Board or prez to let Mr. X come out of the woodwork to oh so graciously volunteer to serve. This doesn't smell right to me.

I'd say that your best bet would be to insist that the board direct your HOA attorney give an opinion on this matter. I'd also say I'm a little worried that your property manager isn't more knowledgeable.

Say, did inspectors of election count the ballots as required in CA?

Hi Kerry,

Thanks for the reply. Great forum here. To answer your questions...

We do have detailed Election Rules, however they don't address this nuance of what to do if they made a mistake in announcing the details of the election to begin with. And actually the nomination from the floor is according to our rules, BUT they should have only been allowed to run for one of the two seats previously announced rather than run uncontested for the third seat that was just announced at the meeting.

We did conduct a proper inspection and count of the ballots - I was one of three inspectors. Just barely made our quorum.

I agree we may get additional interest from other candidates if they know there are three seats instead of two. i.e. If you receive a ballot with only two names, and there are three seats, one might be inclined to write their name on the blank line of the ballot.

As an update today - a few of the Board members have come around to the idea that we accept the outcome of the election as it was originally announced to all homeowners and elect only two Board members. The third seat, which was not previously announced, would go through a separate and normal process of soliciting interest, putting out ballots, and then tallying the results like a normal election.

It seems my appeal is getting some traction. Thanks for your help.

Regards,
Ron

Hi Richard,

Yes, it was an annual members meeting, and the President presided. Although he presided, he did confer with other current Board members when considering decisions. In this case, the Board did not vote to allow a vote for the third seat, the President just declared that it was open, and that we would fill it in the meeting.

The agenda was mailed 30+ days before the annual meeting, and one topic was the Board election, but not the specific number of seats to be filled. The specific number of two seats was listed in the Fall solicitation of candidates, and subsequently in the ballot itself. The third seat was only brought up in the annual meeting.

Our election rules permit both write-in and from-the-floor candidates.

There are 48 units and five directors, and we have a simple majority quorum requirement - so 25 in-person, mail-in ballots and/or proxies for a quorum. The only reason we achieved the minimum this time was because one member owns two homes and is therefore permitted to vote on two ballots.

Regards,
Ron

This. Re-notice the meeting and election. Explain that the error was so severe that the only fair thing to do was nullify the flawed election and start over.

Sounds good, Ron., especially that they're paying for all your HOA expenses.

I hope the MC knows that this will be a Meeting of the Members (Owners). It needs a different agenda, etc. than the Board meeting the same night. After the votes are tabulated and announced, the Board should adjourn to an Organizational Meeting to select officers. This also is an open meeting and needs to be publicly noticed 4 days in advance of it.

Since you barely made quorum last time, you & others might want to do some heavy campaigning to get out the vote.

I signed envelope counts towards quorum. No ballot inside means no candidate gets a vote. .

When conducting an elections the first thing done is verifying you have enough envelopes with addresses and signatures to determine whether or not quorum has been met. Once that is done, then the process of separating the envelopes from the ballots begins.

There is no legal requirement to actually cast a ballot for a candidate or an issue.

Some additional info from our governing documents:

"Quorum. The presence either in person or by proxy, at any meeting, of members entitled to cast at least fifty-one percent (51 %) of the votes of the membership shall constitute a quorum for any action..."

"Proxies. ... A proxy envelope may not be used as a proxy. A proxy may not be used as a ballot."

I read these two definitions to mean that since an empty envelope may not be used as a proxy (i.e. it is not an actual proxy) it would not count towards a quorum. To be counted towards a quorum, there must be an actual ballot or proxy inside the envelope.

Hi Richard,

I believe what you just said supports what I said. It is the ballots (or proxies) that count towards a quorum and not just the signed envelopes. Normally each signed envelope will have a ballot (or proxy) inside, but we had one envelope that did not contain a ballot (or proxy). It was signed, but empty. The MC said it still counts toward the quorum, and I said it did not.

Ron

Say, Ron, since 2006 in CA, members may vote with the double envelope system by US mail. These mail-in or absentee ballots count toward quorum. They are NOT proxies.

No one in my HOA has voted by proxy since '06; there is no need with mail-in ballots. Now, we have on our ballots, a box to check that says for purposes of quorum only. But I'd say that is f an owner sends the outer envelope and it's properly signed & incudes their HOA address, it counts for quorum. Obviosly it cannot count towards any of the candidates.

The double envelopes must be counted before votes are tabulated to see if you make quorum. I'd say Richard is right, though I don't think there's any statute that says the outer signed envelope counts toward quorum. I actually believe it's up to the inspectors to call it.

Hi Kerry,

Although it may be the standard practice to count signed envelopes towards meeting a quorum (they normally have a ballot inside), here's what I read in the CA civil code:

Civil Code §5115. Voting Procedure.

(b) A quorum shall be required only if so stated in the governing documents or other provisions of law. If a quorum is required by the governing documents, each ballot received by the inspector of elections shall be treated as a member present at a meeting for purposes of establishing a quorum. [Old: Civ. Code §1363.03(b)]

Although a signed envelope may suggest a count for a quorum, the civil code says the inspectors have to verify they each contain a ballot to achieve an actual quorum.

Regards,
Ron

Your citation is enough for me, Ron. "...each ballot received by the inspector of elections shall be treated as a member present at a meeting for purposes of establishing a quorum." Clearly no one can define an envelope as a ballot.

We get about 100 ballots a year in my HOA and for the past 12, we've received no empty envelopes, so I'd never thought about it! (We do receive 1-2 unsigned envelopes each year)

This is hard to know since you cannot open the ballots until you call the meeting to order.

Do you open ballots or do you open envelopes?

You legal opinion is wrong, if it was quoted word for word. First, if all the envelopes were address and signed and you had the proper number to reach quorum, then the meeting can be called to order. Now, you have empty envelopes, which could be a protest vote. But you don't stop and then re-schedule just like that.

First, if the meeting to count the ballots is a annual meeting or special meeting of the membership, then this is a member, and THEY are the ones authorized to vote to adjourn to a later date. They may say no.

Second, it is possible to count the ballots at a Board meeting and then it could be the Board who has the authority to adjourn the meeting to a later date. Not an option I would want happening.

I have worked a number of HOA elections as an inspector. If I came across your scenario, I would have the authority, within Civil Code to make the determination, one way or the other to accept that envelope as one that should be counted towards quorum only.

What is the real issue, stopping the election from going forward? It wouldn't effect the outcome of the election, only whether the election could be held in the first place.

This is one of the reason why I think quorum requirements for elections should be eliminated.