RichardP13 (California)
Posts: 3,868
Posts: 3,868
Posted:
This question was recently poised to an attorney on their "weekly" newsletter.
QUESTION: It is time for our annual election. The ballots are being returned to an independent election company. This company is providing a weekly list to the board of all members who have not yet voted. Board members plan to contact these individuals with a request to vote for certain candidates. Is this legal? Do the other candidates have a right to this list so they can do the same?
ANSWER: A strict reading of the Davis-Stirling Act indicates the list cannot be used by directors, candidates, management or anyone else to campaign for certain candidates.
Campaigning: By statute, association money cannot be used for campaign purposes (Civ. Code §5135(a)) Contacting members to urge them to vote for certain candidates qualifies as a campaign purpose (Civ. Code §4920(b)(1).) The association, in paying for the independent election company, has spent funds for the list of members who have not voted. Therefore, directors, candidates or any one else who uses the list to ask members to vote in a certain manner would be using association funds for campaign purposes. All members have a right to campaign for or against any candidate at their own expense.
Equal Access Required: If any member or candidate advocating a point of view related to an election is provided access to association media (such as newsletters, internet websites) the association must provide equal access to all candidates and members advocating a point of view. (Civ. Code §5105(a).) Associations must ensure access to any common area meeting space during a campaign at no cost to all candidates and members advocating a point of view. (Civ. Code §5105(a)(2).)
Early Ballot-Voter Count: The inspector of elections can provide an early ballot-voter count that includes the number of ballots that have been received. Providing a list of who voted is not one of the inspector’s duties (Civ. Code §5110(c)) but is within the inspector’s discretion.
RECOMMENDATION: Voter apathy is a common ailment in most associations and medical research has not yet developed a cure. Contacting members who haven’t voted and asking them to send in ballots may be helpful to meet the quorum of members requirement.
Using a "non-voter" list supplied by the inspector of elections to contact members is allowed, so long as it is not used to campaign for certain candidates. To ensure the list is being used just to encourage voter participation, contact should be made in writing (email or mail).
If non-voting members are to be contacted by phone, it is best to have management make the calls and use a script that does not endorse any particular candidates, but only asks the members to vote.
QUESTION: It is time for our annual election. The ballots are being returned to an independent election company. This company is providing a weekly list to the board of all members who have not yet voted. Board members plan to contact these individuals with a request to vote for certain candidates. Is this legal? Do the other candidates have a right to this list so they can do the same?
ANSWER: A strict reading of the Davis-Stirling Act indicates the list cannot be used by directors, candidates, management or anyone else to campaign for certain candidates.
Campaigning: By statute, association money cannot be used for campaign purposes (Civ. Code §5135(a)) Contacting members to urge them to vote for certain candidates qualifies as a campaign purpose (Civ. Code §4920(b)(1).) The association, in paying for the independent election company, has spent funds for the list of members who have not voted. Therefore, directors, candidates or any one else who uses the list to ask members to vote in a certain manner would be using association funds for campaign purposes. All members have a right to campaign for or against any candidate at their own expense.
Equal Access Required: If any member or candidate advocating a point of view related to an election is provided access to association media (such as newsletters, internet websites) the association must provide equal access to all candidates and members advocating a point of view. (Civ. Code §5105(a).) Associations must ensure access to any common area meeting space during a campaign at no cost to all candidates and members advocating a point of view. (Civ. Code §5105(a)(2).)
Early Ballot-Voter Count: The inspector of elections can provide an early ballot-voter count that includes the number of ballots that have been received. Providing a list of who voted is not one of the inspector’s duties (Civ. Code §5110(c)) but is within the inspector’s discretion.
RECOMMENDATION: Voter apathy is a common ailment in most associations and medical research has not yet developed a cure. Contacting members who haven’t voted and asking them to send in ballots may be helpful to meet the quorum of members requirement.
Using a "non-voter" list supplied by the inspector of elections to contact members is allowed, so long as it is not used to campaign for certain candidates. To ensure the list is being used just to encourage voter participation, contact should be made in writing (email or mail).
If non-voting members are to be contacted by phone, it is best to have management make the calls and use a script that does not endorse any particular candidates, but only asks the members to vote.