Elections

Started by BillS11 • 31 replies • 2526 views

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BillS11 (California)
Posts: 19

Posted:

In California we are required to adheare to California Civil Code Section 1363.03 which lists the requirements for holding an election for Board members.

What I am intersted in is what happens when three members of a five member board refuse to follow those laws and holds an election where one board member looses under suspicious circumstances.Only 165 votes possible two of the three in question got 40 votes each the other two in question received 23 each the other two had 20 and 19 votes.

Can that board member sue or does he have to go through another process.There is nothing the By-Laws on this and the By-Laws have not been updated since 1967. The C.C.& R'S also contain nothing on this.

Anyone have a suggestion?

SusanW1 (Michigan)
Posts: 5,202

Posted:

HOW was EACH candidate voted for?

Or did you vote for a "slate"? with the highest getting candidates elected?

DonnaS (Tennessee)
Posts: 5,671

Posted:

Bill,
You need to be a little clearer for us please. Which candidate is contesting the count? Are proxy votes allowed? What part of your Cal. Civil laws did they not follow? HOA's in Cal follow the Sterling Davis Act for their operation codes.

In an election, even if only 10 votes were cast, whoever had the most would be the winner second most would be next and so on. Elections do not require a certain percentage of member votes to be cast---as long as your meeting quorum was achieved.

As for the Board member sueing? Who would he like to sue? That is never the answer in these kind of situations. Sueing costs money and is the Board position so woth soending alot of money to get a spot on the Board?

BillS11 (California)
Posts: 19

Posted:

Thanks for the reply

Proxy votes are allowed however the four used to secure the election were not in compliance with Ca. Civil Code 1363.03 and Ca Corporations Code 7613.

I was the secretary of association for two years and attempted to get the rmaining board members to comply with new laws. The two ladies on the board refused to comply with the laws on elections under ccc1363.03 and passed out single envelope ballots and proxy ballots listing the president as the one to vote the ballots.

The President did not make the annual meeting and the two ladies voted the proxy ballots for their own selfs.They collected the balots and brought them to the meeting and gave them to another two homeowners who opened and counted them During the opening and counting these two ladies went into the counting area ignoring my protest and assisted the two homeowners in counting the Ballots. This is another violation of ccc1363.03.(Possible Fraud under California Laws)

I have been advised that violating any article of the Sterling Davis act is a fineable violation with fines up to $500.00 per violation. My goal is to have a new election that is in compliance with the laws and is open and above board without any fraud or deception.

I was just looking to see if anyone elese had that problem in the past and what happened.

SusanW1 (Michigan)
Posts: 5,202

Posted:

The time to object to the election process was at the time of the announcement of the results. You could have motioned to have the election deemed null and void due to violations XYZ. There would have been a vote on that motion.

As time passed, people forget and forgive . . .

P.S. I don't understand why people counting ballots consitutes a violation. Can you be more specific? Who was supposed to be the official counter, as per your bylaws or state documents?

IMHO your chairperson should have appointed a "teller" to run the election, a person or small group of people who would have collected, verified, & counted the votes and given the results to the chair, who makes the official announcment.

PaulM (Pennsylvania)
Posts: 1,347

Posted:

BillS11: Do not understand your question/s. Based on what you have posted, you state only 165 votes possible and the breakdown posted is:

1 - 40 votes
1 - 40 votes
1 - 23 votes
1 - 23 votes
1 - 20 votes
1 - 19 votes totaling 165 votes

Does the above show 6 candidates to be voted to make up a 5-member board?
You will have to explain further.

BillS11 (California)
Posts: 19

Posted:

SusanW1

In reply
I did object and was told that the election stood as is and that I had lost the election by the two other female board members who were present

In California Board Members and Candidates are not allowed by California Civil Code Section 1363.03 to instruct, hold a conversation or have access to the ballots once they are opened and the tally starts. They may only witness the opening and counting of the ballots.

PaulM

In reply yes there were 6 candidates four incumbants and two new candidates. A ballot of 6 candidates with each homeowner able to vote for only five or give one candidate all five votes. To get 40 votes you would need to have 8 homeowners give you all 5 votes to get 23 votes you would need 23 out of 33 homeowners to vote for you or four to give you 5 and then three to give you 1 vote. to get 19 votes you would need 19 individual votes you would need 1 vote of five and the balance of 1 vote to make the 19. My opinion is the only way to get more than 33 would be to pad the ballot box or adjust the tally.

If you throw out the 4 unaccpetable proxies we would only 29 out of 52 homeowners votes or total of 145 votes. Whats your thought?

SusanW1 (Michigan)
Posts: 5,202

Posted:

"with each homeowner able to vote for only five or give one candidate all five votes"

WHAT?? that's crazy.

EACH homeowner should be able to cast ONE vote for ONE position.

No wonder there is confustion. There is no way to compute ALL the possible outcomes.

BillS11 (California)
Posts: 19

Posted:

SusanW1

I know its bad. however under california laws its called cumulative votes.

I have been trying for two years to change the method to the better system of one vote per each homeowner. However still allow them to vote for five candidates on the slate..

Three Board members have shot me down every time. I am now resulting to a petition drive to change and am filing in small claims a request to have Judge void the election and require a new one.

PaulM (Pennsylvania)
Posts: 1,347

Posted:

BillS11:

My thoughts are as follows....that's the craziest proxy set-up I have every heard of! And, at the very least, it affords great opportunity for mis-counting votes. You don't state how the proxies were entered into the tally; were they mailed to a designated person and opened at the meeting? ...was there a non-partial person/s counting the votes?

Most important, unless your documents state THIS IS THE PROXY FORM AND THE PROCESS you are to use--or if your State Documents say so, then who thought this one up?

Further, eligibility to vote for Board candidates is based on a member being in good standing (current with dues, no outstanding violations). A member/deed holder of one unit has one vote. If there are 2 occupants or 5 occupants, they need to decide who will cast 'their' collective vote.

Now, if a ballot lists several nominees on the one ballot, the member votes the ballot for those he chooses, but it is still one vote/one ballot per unit. You cannot 'give away' votes to allow more of 'your' votes to go to one candidate. Your assn. really needs to question this process. Something is seriously amiss....

BillS11 (California)
Posts: 19

Posted:

Reply
Pauls

Thanks for the info
I know the system is screwed up and California has passed laws that require the updating of C.C.&R'S in this area. The only problem is I have two ladies who have owned a home in the community since 1967 and apparently have some sort of control over people.

They shoot down anyones attempt to change the rules and simply say sue us if you want since you will not like living here if you sue us. So toiday I filed a very large law suit in Civil Court that should shock them out of their panties, I am using the local District Attorney to ram rod the case under the auspice of Unfair Business Practices. California Has very strict laws on unfair business practices that catty heavy fines and jaol time.

Hopefully this will solve the problem. I also have no problem sueing the association since I work for a local government agency and have unlimited resources available to me to utilize if needed.
Thanks keep the ideas comming.

PaulM (Pennsylvania)
Posts: 1,347

Posted:

BillS11: It is unfortunate that you feel you have had to resort to the legal system to try to make some sense out of the practices your association is currently using.

That is always the very last resort to turn to, and not one that anyone wants to see happen. Keep us informed of the CA law/s which require updating the CC&Rs since there are many here who will be anxious to learn of any changes.

HaroldS (Arizona)
Posts: 906

Posted:

Good for you Bill! I hope those females wrote that threat or spoke it in front of witnesses. Good luck! Do keep us informed. Harold

SusanW1 (Michigan)
Posts: 5,202

Posted:

This STILL does not make sense. YOUR organization has 5 positions to fill. You say EACH homeowner has 5 votes to cast, as they see fit. And can be "dumped" all on one candidate. What about associations that have 15 board members or more?

Somehow, I think there has been a misreading of the state law. Please site your source.

RogerB (Colorado)
Posts: 5,067

Posted:

By-laws usually state that cumulative voting is not allowed. That means only one vote for a candidate per ballot.

PaulM (Pennsylvania)
Posts: 1,347

Posted:

BillS11: You state that 'under california laws its called cumulative votes.'
----------------------------------------------------------------------------

Would you kindly cite the verbiage which directs your association to create a proxy and voting as you have described. This is indeed a 'new one' to most of us.

Further, you stated that CA law has requested that CC'Rs be updated to reflect changes to proxies. Would you post the CA change/s as well. Thanks.

BillS11 (California)
Posts: 19

Posted:

SusanW

The source is the California Corporations Codes that pertain to voting and number of votes.1967 when association was incorporated. These have not changed much since then and do conflict with newer laws. Three board members claim that these codes supercede the Sterling Davis Acts requirements.

The New provisions of Sterling Davis Act have been implimented by the Governor so as to clarify and eleiminate some of the old methods. Three members of the board have refused to accept the changes and are insisting on keeping the old ways.

As to 15 members depending upon the C.C.& R'S each homeowner could in respect cast 15 votes for one board member or vote for 15 individuals like it should be. (Cumulative votes is the old system where the laws allow for one person to vote all their votes to one person.)

BillS11 (California)
Posts: 19

Posted:

PaulS

The verbage is in the California Sterling Davis Act or can be found in California Civil Codes Section 1363.03 (Available online from www.mycalifornia.

The California Corporations codes which the stering davis act supercedes alowed for HOAS who are Incorporated to aloow for cummulative voting. It is outlined as the following:

Each homeowner has one vote that may be cummulative. The cummulative vote value is based on the number of seats being elected. (3) (5) etc.
Therefore if you have 5 seats open a homeowner may vote for all five or cast his (5) votes for one candidate.

My feeling is that if you do not want to vote for all five you simply cast one vote for one person. The one s getting the most votes wins. Only problem is that when a board member gets access to the ballots it easy to mark the unmarked names to bolster the count. That is what i think happened in my case.

BillS11 (California)
Posts: 19

Posted:

RogerB

reply:
youre right one vote per candidate. (If there are 15 open seats and 20 candidates then each voter gets to vote for up to 15 individuals.)

Some older C.C.& R'S and By-laws still allow the individual to cast all 15 for one candidate. Thats why California has changed their laws in the Sterling Davis Act to allow HOAS to change to the new system. if you want to do research check out "Sterling-Davis on the internet" or look under mycalifornia then go to California laws and click on California Laws. Then check California Corporations codes and check Voting and Proxy rights.

California Civil Code section 1363.03 is the most updated article on voting laws for California HOAS. In these Civil codes they reference that when a governing document of an HOA conflicts with state or federal laws then the state or federal law takes presidence over the governing document. California has very complicated laws that are also embedded in the Fair housing and Labor laws as well on this subject.

California Attorneys make million every year representing HOAS and helping them comply with all the complex laws.

BillS11 (California)
Posts: 19

Posted:

haroldS

reply:

Thanks for the positive support. They did it in front of only me and one of the newly elected candidates at the annual meeting. Then again in an executive session.

That really does not matter since my civil action will be to force them to comply with current state laws. The unfair Business claim is just an added bonus and in Caliornia is hard to defend against such action.

The fines for being convicted of unfair businees practices in California range from $5,000.00 and up and can generate state prison time if warranted.

JaneK (California)
Posts: 175

Posted:

Let us know the results. There have been many problems with this California election law and numerous suits. My association also in not in compliance.
Jane

BillS11 (California)
Posts: 19

Posted:

JaneK
Reply:

Thanks for the reply and sorry to hear your HOA is not in compliance.
I have found the following:

1. Small Claims Courts in California have been swamped with such claims and are over loaded so they are referring them to the unlimited Civil Court for disposition.

2. Californias State Attorney General has had the authoritry since 1/1/2006 to enforce the California Corporations Codes on HOAS that are registered as a Mutual Non-Profit Corporations. Since the Corporations codes refers back to the Sterling Davis Act. The AG will most likely start going after violators of the Sterling Davis Act now that they have the funding and fine system in place to fund the operations.

3. My claim is only one of ten that is currently in front of the Judge here in Orange County. The Judge will most likley invaladate the elections and require new ones be held.

4. The Judge reminded me that the Election Laws went into effect on January 1, 2006 . giving all HOAS one yaer to comply and correct their governing documents.

5. I also know that there are several HOA Attorneys available that have turn key packages available for sale to HOAS for this particular purpose. Those range in price but costs on average about 750.00. A very good investment since attorneys fees are on average $350.00 per hour and court costs are more than that. I bought one for my HOA however two of the female board members refused to accept the change saying that no one has authority to tell them what to do. They soon will find out that someone does have the authority.

Let me know how you HOA is doing in that area.

SamR (California)
Posts: 1

Posted:

Bill,
I have followed your POSTs on the THREAD primarily because I am interested in how CA's Small Claims Court's deal with the new authority they have been given by the recent the Civil Code changes dealing with HOA voting & elections and HOA Member's access to the HOA's Books and Records which also has been specifically put under the authority of the Small Claims Courts.

I am in Marin County [S.F. Bay Area] and have already brought an action in SCC dealing with both access to Books & Records and Voting & Elections and found that the Courts are just not ready for this and IF given the chance [as happended in my 1st case] the Commissioners will rule against the Homeowner and NOT even tell them why they rulled the way they did.

I would very much like to swap emails OFF-FORUM to share the specifics of what is happening here in the California SCC and with our new ATG Brown!

Sam Ross with special email address: [email protected]

SusanW1 (Michigan)
Posts: 5,202

Posted:

Bill - you said in a past post:
"Sterling Davis Act to allow HOAS to change to the new system."

"to allow" has me puzzled. Is this a MUST, or is it another option the HOAs can adopt, if desired?

Bylaws can be MORE restrictive than State laws, but of course, not in conflict.

PaulM (Pennsylvania)
Posts: 1,347

Posted:

BillS11: Why, if there are 5 directors/seats open for the Board, and perhaps you have 6 candidates, why can't the member submit his vote for the 5 he wants? He still gets 1 voting ballot and the ballot shows the amount of open positions. The problem comes in when all 5 names are on 1 ballot and if the member decided to only vote for 1-2 candidates instead of 5, I can see that 'someone' could fill in the blank boxes.....that's why it's important to have an appointed election committee to oversee the process and perhaps not use a ballot with ALL candidates names--rather, allow members to write in name/s from the candidates available. This would also alleviate proxies which could be tampered with "after the fact".

This is getting really confusing and after all this back and forth, 'cumulative votes' in CA still remain elusive to me. It is perhaps a mystery which can be easily solved by clearly defining its misinterpretation or misunderstanding.

BillS11 (California)
Posts: 19

Posted:

SusanW1

No its not an option.

California Civil Code Section 1363.03 is part of the Sterling Davis Act and as such requires all HOAS to develop a written policy that complies with all aspects of CCC 1363.03 pertaining to elections , proxy ballots and election inspectors.

This law went into effect on January 1, 2006 and all HOAS were supposed to be in compliance before January 1, 2007. CCC1363.09 (b) allows the civil courts to assess fines of up to $500.00 on any HOA that is not in compliance with CCC1363.03.

I beleave that the State Attorney Generals Office is in the process of setting up a new enforcement division to enforce this on all HOAS. However for now the Attorney General only enforces the California Corporations Codes that some older HOAS that incorporated as Non-Profit Mutual Corporations. If you are Incorporated in california you must abide by both the Corporations Codes and the Civil Code (Sterling Davis Act.) This is somewhat confusing since each has a different set of specifications so the State has placed wordage in both for this year that refers HOAS directly to the Sterling Davis Act for compliance with such elections. My suggestion has been to automatically adopt ccc1363.03 as your election policy to be safe.

BillS11 (California)
Posts: 19

Posted:

paul M
Reply:

It is very confusing here in California since we have two sets of laws to govern by.
1. California Corporations Codes (Administered by the Attorney Generals Office)
2. California Civil Codes (Administered by the Superior Courts)

The Sterling Davis Act ccc1363.03 has wording in it that supercedes the California Corporations Codes. However it does not contain the proper procedure for changing HOAS C.C.&r'S or By-Laws to accomidate the new more restrictive rules of ccc1363.03.

Hopefully when this is ironed out things will go smoother and we will get back to the normal 1 vote for each homeowner and no proxy votes.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Your bylaws should have a statement in it that simply says your corportion follows the current laws of CA!

It's the same as when the price of a stamp changes, your group simply abides by the new rate, because that is the law! no need to adjust YOUR documents.

Are you the lone wolf on this objection? I can't imagine why a letter from the State Attorney General to your Board could not set them straight. Request the letter be written to your board. No need for lawsuits.

BillS11 (California)
Posts: 19

Posted:

SusanW1

Thanks for the reply.
Thats what I have been trying to do for the past two years.
I and another board member who resigned because of the problems created by the other three are all for the change.
The two female board members who are realesate sales people and the one male who is a school teacher refuse to change the rules.
I have tried a letter from the Attorney General with no avail. They recomeded the Civil Action in Small Claims.

The AG will however investigate the non-compliance with Corporations code 7520 concerning reasonable elections and nominations. Under this code the HOA is required to use the new ccc1363.03 as their policy and procedures.

Since the two females tampered with the tally of the ballots in order to get rid of me I must file the Civil Action to force a new election under the proper codes.

Filing fees are $320.00 plus $250.00 for attorney to prepare documents. This an all other fees if successful can be recovered from the Association if successful. The civil court allows for up to $25,000.00 to be awarded to the successful homeowner who sues and wins. That is why its imporatnt for HOAS in California to start being compliant instead of being bullish and stubborn about complying.

BillS11 (California)
Posts: 19

Posted:

Reply to SusanW1

I did have the State Attorney General write a letter it was received by the board on January 18,

Interesting letter. So far no response from the board.They of course have 30 days to respond to the AG. Whats interesting is that if their response is not acceptable the AG can file suit in court to uphold the California Corporations codes or join in any civil action already in progress.

Under the codes the AG can take over control of the HOA and appoint new Board, Disolve the HOA or pursue other legal remifications to correct the violation or violations of the Corporations Codes. He can not however enforce the Civil Code or Sterling Davis Act.

I was also told that effective July 1, 1980 all HOAS that were incorporated before that date could simply file with the State a statement that they have accepted the new Laws and are willing to be governed by the new laws as stated in the Sterling Davis Act. That all HOAS incorporated after that date are automatically covered by the Act.

In my case the Judge is now waiting to see the reply to the AG.

RobertoG (California)
Posts: 10

Posted:

Hi BillS11
I'm a Board member and My situation is very similar that yours, I'm have being looking for legal advice for longer that 2 months with not results.
I need help to write a letter to request inspection of the election materials and recount of votes. That is the first step, I guess.
please advice
my email
[email protected]

Roberto

JaneK (California)
Posts: 175

Posted:

Roberto,
I'm still looking. Been looking for a year. There doesn't appear to be any kind of legal help for homeowners.
Good luck to you.
Jane

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