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Board Members Opening Votes before Annual Mtg

Started by SC • 16 replies • 1681 views

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SC (Georgia)
Posts: 38
Posted:
We have our Board of Directors Elections coming up soon. It is the first time that we have ever had an open election so it is going to be contentious.

The ballots were sent out with a self-addressed stamped envelope asking all homeowners to mail the proxies back to the Association. (Or they may bring them to the meeting.) Our by-laws state that the proxies be filed with the Secretary of the Association prior to the meeting. The by-laws give no other information on the counting our authenticating of the ballots.

Our Board voted 3-2 to OPEN the proxy votes they had received so far to authenticate the signatures on each before the meeting. (Approximately half the membership had mailed them in.) The President and one other Board member felt it was unethical to open the envelopes before the meeting as it was tampering with the votes. It was not the Secretary who authenticated the proxies however. One board member, elected as Assistant Treasurer, picked of the proxies from the post office box, took them home and opened them. He says he is sworn to secrecy about how anyone has voted.

However, after opening the ballots, he and several others signed a letter mailed to all homeowners coming out against one of the nominees.

Would this be considered malfeasance by the directors who voted or did this? Does this give the losing group a reason to void the election?
RogerB (Colorado)
Posts: 5,067
Posted:
SC, the ballots normally would not be opened before all votes are cast. In this cas at the meeting. Even then they should be opened by a talley committee. The assistant Treasurer should be scantioned for being involved with the letter, even if he had not opened the ballots. However, if those members sending out the letter paid for the cost the HOA can not prevent such a bad act. The Board can decide how to handle this. At the least they should repremand the violators at the beginning of the meeting. And as the Chair I would state "Their inappropriate action reflects on them, not the nominee."
SC (Georgia)
Posts: 38
Posted:
RogerB-yes, but the Board voted 3-2 to let this particular Board member open the ballots before the meeting. He has access to the post office box because he is the Asst Treasure.

A majority of the Board feels they have the right to do this.
LarryM3 (California)
Posts: 37
Posted:
SC,
If you are in California it is illegal. A seperate independant inspector has to open and validate that they are legal. Davis-Sterling Act.
The Act has a very precise way in which the votes are handled.. Might be good for other HOA's and states to adopt. IMO
Larry
JosephC2 (Florida)
Posts: 23
Posted:
I'd contact the association attorney and seek advice from whatever state watchdog agencies there are in your state.
JudithC (Virginia)
Posts: 253
Posted:
Interesting, anyone know whether Virginia has any prohibitions about counting votes before the meeting? I know it is not in the POAA.

I would have thought this to be common practice in large corporations. I'm sure they don't keep all those stockholder votes to be tallied at the meeting. Some condos with their proportionate voting it would be handy to get some of the work done in advance. I know our association does it just as a convenience.

I agree that sending out an anti-candidate letter was extremely bad form for a member of the board and unethical by someone who is opening the votes.
RobertR1 (South Carolina)
Posts: 5,164
Posted:
I have to say the whole procedure should be declared null and void by the president of the Board, and then he should declare a new election will be held with the members name that was denigrated placed formally on a new slate of candidates.
To me, these actions, by Board members and allowed by the full board have questionable legality. Maybe the other Board members didn't know this uncalled for letter was being sent. Now that the act of writing the letter has been done, what actions has the full Board done to make the offended member whole? If none, I would name the full Board in my suit. I take it that the elections were allowed to proceed at the meeting in spite of the knowledge the votes were opened before the meeting and the elections were verified. They should never have been allowed to stand. For my part if I was the person that was denigrated in the letter by a Board member I would obtain an attorney, no matter what State.

What kind of nonsense is this, what kind of members belong to this association.
And the big scary question is, "What's next?"
RobertR1 (South Carolina)
Posts: 5,164
Posted:
To SC.
You state that this is the first open elections you have had. Please explain.
Before this election how were the Board members voted in? If this was an appointed Board I sure would question if those board members have this kind of discrection to vote on anyone being allowed to do anything that is not in strict observence with your CC&R's. I appears there should have been a outside source hired to oversee that election.
SC (Georgia)
Posts: 38
Posted:
RobertR1-We have not had the annual board meeting yet. It is in the next 2 weeks.

We have been an association for many years. The Board has been self-perpetuating with the same Board members being nominated year after year. The selection of the Board nominees last year was nowhere in the board meeting minutes. Last year, the President of the Board sent an email to the other Board members selecting the 2 candidates (prior board members) to be on the ballot. The other 3 people (who have never been on the Board but also filled out willingness to serve forms) were sent a thanks/but no thanks letter.

This year will be our first year with 2 candidates going up for one position.

The majority of the Board has fought open elections, fought open board meetings, and fought allowing homeowners access to the meeting minutes. They finally gave in due to persistence by several homeowners and the fact that two of five board members consistently push to do the right thing. Unfortunately, one of the 2 reasonable board members is the position up for election.
RogerB (Colorado)
Posts: 5,067
Posted:
SC, I don't think the President nor the Board has any authority to turn down a nominee as a candidate for the Board. IMO, any eligible member can be a candidate unless the By-laws state otherwise.
RobertR1 (South Carolina)
Posts: 5,164
Posted:
SC
I'll second that Roger. We have been through that and now any member who volunteers has the right to be put on the slate. You certainly don't have to worry about the membership beating down the door to get the position.
I never have understood how the board or any other member feels they are endowed with mystical powers to prejudge their equal. I would like to see a slate of ten folks for every 100 members.

For Judith:
As far as apportioned shares are concerned, that doesn't effect voting in elections one way or the other. In any appropriate vote the time it takes to calculate apportionments is next to nothing. These "fudge factors" are set at the time of the start of the association and if the "Miller" family sends in or voices a vote they are just voting that factor instead of 1.)
SC (Georgia)
Posts: 38
Posted:
RogerB- Homeowners have been told they couldn't run for at least the past two years-which is what has stacked our Board with the same people year after year. It's highly probable that the majority of members would NOT have voted for these people.

If the Board lacks the authority to deny residents the right to run for office:

Is it too late to question the validity of the election. The problem is that the term of office is 3 years. Plus, one of the Board members was appointed (go figure) to fill an empty slot. So he will be on the Board for a total of 4 years.
PaulM (Pennsylvania)
Posts: 1,347
Posted:
SC: It sounds like your 'board' is really dictating how/when/where elections are run. They are not above your official documents. You need to review your Bylaws to learn the process for Board members, their terms and election by residents.

When you state the term of office is 3 yrs., is it the community's FIRST election whereby there is one officer to run for 3 yrs, and the others for 2 yrs, giving the Board a staggered election and ensuring a veteran and newbies at any given time (barring resignations...)???

You and others really need to study your official docs to see if you have any recourse to what your present board is deciding for you.
JudithC (Virginia)
Posts: 253
Posted:
On the appointed board member: one of my first acts when I got involved was a bylaw change that said any appointee just filled out to the next annual meeting; the seat would be open for that meeting. The reason for this was we had a board that decided that the association was mature enough that we should not have elections, but the old board members should just appoint the new.

SC, it sounds like what your community has been doing forever. It has to be against your bylaws, but the only question is how can you impact it. The whole "throw the bums out" advice you get from association experts doesn't work if you don't have elections. Say the election is illegal as all get out -- who do you report it to? It seems rather clear that if you petition this board for a meeting so you can "throw the bums out" they will simply ignore the petition. If your state/county has nothing to do to back you up, perhaps you should publicize it via the media. "Democracy dies in XXXX, members are not allowed to run for the board". I don't know, it seems like you are getting a lot of "shoulds", but no "how to". Unfortunately in a case like this "how to"'s are very difficult as most laws, bylaws, etc. have no teeth in them to support the legitimate concerns of the populace. Legal cases are expensive, and for many that is actually the only real remedy there is. Perhaps you could get enough people to form together to fund an attorney -- meanwhile, document, document.
RogerB (Colorado)
Posts: 5,067
Posted:
SC, this depends on what your By-laws specify in regard to when the meeting must be held; how long in advance the members must receive notice of meeting; and how the voting is conducted. For example, suppose the meeting must be held on a specific date and there is not sufficient time to send a revised notice of meeting with the list of candidates; and nominations can not be made from the floor at the meeting. Then your recourse would be to call for a "point of order" which must be accepted immediately by the Chair. State that no election of Directors is valid because members who wanted to be candidates were improperly exclueded. If the Chair will not accept this, then try for a motion, second, discussion, and vote of the members and members proxies to stop the election of Directors until a special members meeting is called.

Another approach, if candidates can be nominated from the floor and proxies are allowed, is to solicit members who would serve and would be good Board members; you and they go door to door to solicit proxies; go to the meeting with many more than enough votes to elect your candidates (they will hear of your efforts and also get proxies).

I presume that Board member's term was going to expire this year and the Board wanted to assure that Board member would be able to stay longer. The appointment of an existing Board member to fill an opening may not be in violation of your By-laws but it is obviously no proper procedure.
DonN (Michigan)
Posts: 357
Posted:
This thread is just one of many examples of "out of control" boards who do what they want to do. I doubt that any of the board members told the members in advance that they intended to ignore good practice in conducting an election.

Imagine the public reaction if the clerk of a municipality opened the absentee ballots in advance of the election date and without others present. Obviously, what the board is doing is wrong, though it may not be technically in violation of the state law which tends to be minimal. However, it is likely a breach of fiduciary duty in failing to act with due care and due diligence. It is certainly a violation of trust and fair play.

But the problem illustrates another difficulty, which is the enforcement of the governing documents and fiduciary duty on the board members. There is no mechanism short of civil litigation in which the economics of litigation are strongly stacked against the individual members. Some states are trying ombudsman and/or Alternative Dispute Resolution, but none appear to have an quick and effective process that is low cost to individual members.

Absent the laws individual owners/members really need, the fallback is to "throw the bums out" by a recall.
SC (Georgia)
Posts: 38
Posted:
Thank-you for all of your comments. They have been very helpful. I'll let you all know how the meeting goes. Thanks again.

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