Inspector says ballot can be corrected

TerriS6 (California)
Posts: 3,284

Posted:

I just received this answer from inspector of elections. This is an election to increase assessment by 58%. She says if she receives a ballot and the envelope is not signed, the voter can correct it. Also says the balloting period can be extended. I say for directors yes but not for assessments. This is not a special assessment, it is an increase of regular assessment over 20%. Kerry???

"Thank you for your email. Please rest assured that this election process complies with Association governing documents and applicable regulations. The Davis-Stirling Act was updated in 2022 to no longer require Pre-Ballot Notices for votes on special assessments. With regard to quorum: yes, the balloting period can be extended if quorum is not met. There is helpful information regarding quorum at these links:
https://www.davis-stirling.com/HOME/M/Member-Quorum
https://www.davis-stirling.com/HOME/S/Special-Assessments-and-Alternatives

With regard to replacement ballots: yes, once ballots are received they are irrevocable. However, if, for example, a homeowner has forgotten to sign the exterior of their ballot envelope, they may be given an opportunity to cure that defect."

KerryL1 (California)
Posts: 14,550

Posted:

Your subject line is misleading because what concerns you is a outer envelope require for the secret ballots, not the ballot itself.

I'm guessing you already read this so not sure why you want me to repeat it: https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5115#axzz2CR2ljirY
"Civ. 5115. Voting Procedures. (c)(1) The ballot itself is not signed by the voter, but is inserted into an envelope that is sealed. This envelope is inserted into a second envelope that is sealed. In the upper left-hand corner of the second envelope, the voter shall sign the voter’s name, indicate the voter’s name, and indicate the address or separate interest identifier that entitles the voter to vote."

This does not say that the signature must be on the 2nd envelope when the ballot is delivered or is mailed to the Inspector. Therefore, and only in my opinion, if the voter has neglected to sign, can prove their identity based on the state-required voters list, at the ballot counting meeting, why not let them sign the unopened ballot's 2nd envelope prior to tabulation or whenever the assembly motions, etc., to close the balloting. ?

I'm in a rush so will pass on the quorum question. I think you & others discussed this at length previously? How do YOU interpret the D-M citations your Inspector gave you???

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By KerryL1 on 11/13/2023 3:26 PM
Your subject line is misleading because what concerns you is a outer envelope require for the secret ballots, not the ballot itself.

I'm guessing you already read this so not sure why you want me to repeat it: https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5115#axzz2CR2ljirY
"Civ. 5115. Voting Procedures. (c)(1) The ballot itself is not signed by the voter, but is inserted into an envelope that is sealed. This envelope is inserted into a second envelope that is sealed. In the upper left-hand corner of the second envelope, the voter shall sign the voter’s name, indicate the voter’s name, and indicate the address or separate interest identifier that entitles the voter to vote."

This does not say that the signature must be on the 2nd envelope when the ballot is delivered or is mailed to the Inspector. Therefore, and only in my opinion, if the voter has neglected to sign, can prove their identity based on the state-required voters list, at the ballot counting meeting, why not let them sign the unopened ballot's 2nd envelope prior to tabulation or whenever the assembly motions, etc., to close the balloting. ?

I'm in a rush so will pass on the quorum question. I think you & others discussed this at length previously? How do YOU interpret the D-M citations your Inspector gave you???

Thank you, Kerry. Yes, I know the difference between the ballot and the envelope.

The ballot sent to us states "If the board extends the balloting period, the Association may mail new ballots to members who have not previously returned a properly completed ballot."

The IOE determines when the polls close and the deadline for submitting ballots is 10am on 11/27/23. The member meeting to count the ballots is at 1pm same day.

The ballot says there is a deadline but I don't see anything that would authorize an extension of balloting in an assessment increase election.

Corp code 7513 requires reasonable time to return the ballots and approval is valid only when ballots are cast within the time period specified.

Not concerned about the quorum number, just extending the ballot period to achieve a quorum. I know director elections can be extended but I don't think assessment elections can.

AidylP1 (California)
Posts: 173

Posted:

https://www.davis-stirling.com/HOME/E/Extended-Balloting

If balloting can be extended for special assessments, I would say the same holds true for regular assessments over 20% that require a secret ballot.

AidylP1 (California)
Posts: 173

Posted:

Ballots can be corrected prior to the closing of the polls. Typically, the Board chooses when to close the polls and passes that information onto the IOE.
Some homeowners are leary of having the signatures available for all to see. Don't blame them. https://www.davis-stirling.com/HOME/B/Ballot-Signature-Privacy

AidylP1 (California)
Posts: 173

Posted:

Ballots can be corrected prior to the closing of the polls. Typically, the Board chooses when to close the polls and passes that information onto the IOE.
Some homeowners are leary of having the signatures available for all to see. Don't blame them. https://www.davis-stirling.com/HOME/B/Ballot-Signature-Privacy

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By AidylP1 on 11/13/2023 7:32 PM
https://www.davis-stirling.com/HOME/E/Extended-Balloting

If balloting can be extended for special assessments, I would say the same holds true for regular assessments over 20% that require a secret ballot.

Thank you, I did read that. A special assessment is on top of regular assessment and is one-time. I don’t see anything specific in the statues and the Corp Code says the ballots must be returned within the specified time period. Also, why would director elections be specific but assessment elections omit that language?

TerriS6 (California)
Posts: 3,284

Posted:

And our ballot says if there are mistakes on the returned ballot, a new ballot can be sent out.

KerryL1 (California)
Posts: 14,550

Posted:

I'm missing your citation that states ballots may be "corrected," Aidyl. Ballots themselves are irrevocable. Citation, please??

I also see your good citation that envelopes MUST be signed but that there are methods to sign them that help insure the voter's privacy. Readers might like to know that when ballot envelopes are returned to the place designated by the IOE(s), whether in person or by mail, they are then kept in a sacred location to which no one except those designated to receive them has access.

Extending the balloting is an interesting case study

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By KerryL1 on 11/13/2023 7:55 PM
I'm missing your citation that states ballots may be "corrected," Aidyl. Ballots themselves are irrevocable. Citation, please??

I also see your good citation that envelopes MUST be signed but that there are methods to sign them that help insure the voter's privacy. Readers might like to know that when ballot envelopes are returned to the place designated by the IOE(s), whether in person or by mail, they are then kept in a sacred location to which no one except those designated to receive them has access.

Extending the balloting is an interesting case study

Contrast director elections where an adjourned meeting and lower quorum are allowable. But member votes on regular assessment increases have no exceptions like that. In fact as above Corp Code 7513 requires returning the ballot in the specified time.

TerriS6 (California)
Posts: 3,284

Posted:

Kerry, you said ballots are kept where they are protected. Then how would the board know if any ballots/envelopes aren’t completed accurately.

AidylP1 (California)
Posts: 173

Posted:

Quote:

Posted By KerryL1 on 11/13/2023 7:55 PM
I'm missing your citation that states ballots may be "corrected," Aidyl. Ballots themselves are irrevocable. Citation, please??

I also see your good citation that envelopes MUST be signed but that there are methods to sign them that help insure the voter's privacy. Readers might like to know that when ballot envelopes are returned to the place designated by the IOE(s), whether in person or by mail, they are then kept in a sacred location to which no one except those designated to receive them has access.

Extending the balloting is an interesting case study

The lawyers opinion waa posted. Pleaae read it.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By AidylP1 on 11/13/2023 9:01 PM

Posted By KerryL1 on 11/13/2023 7:55 PM
I'm missing your citation that states ballots may be "corrected," Aidyl. Ballots themselves are irrevocable. Citation, please??

I also see your good citation that envelopes MUST be signed but that there are methods to sign them that help insure the voter's privacy. Readers might like to know that when ballot envelopes are returned to the place designated by the IOE(s), whether in person or by mail, they are then kept in a sacred location to which no one except those designated to receive them has access.

Extending the balloting is an interesting case study

The lawyers opinion waa posted. Pleaae read it.

I read that case before posting my question here. It is an unpublished case concerning a super majority vote needed to amend the Declaration.

TerriS6 (California)
Posts: 3,284

Posted:

And, our polls close 3 hours before the meeting to count the ballots so someone couldn't bring their ballot to the meeting to be counted.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By KerryL1 on 11/13/2023 3:26 PM
Your subject line is misleading because what concerns you is a outer envelope require for the secret ballots, not the ballot itself.

I'm guessing you already read this so not sure why you want me to repeat it: https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5115#axzz2CR2ljirY
"Civ. 5115. Voting Procedures. (c)(1) The ballot itself is not signed by the voter, but is inserted into an envelope that is sealed. This envelope is inserted into a second envelope that is sealed. In the upper left-hand corner of the second envelope, the voter shall sign the voter’s name, indicate the voter’s name, and indicate the address or separate interest identifier that entitles the voter to vote."

This does not say that the signature must be on the 2nd envelope when the ballot is delivered or is mailed to the Inspector. Therefore, and only in my opinion, if the voter has neglected to sign, can prove their identity based on the state-required voters list, at the ballot counting meeting, why not let them sign the unopened ballot's 2nd envelope prior to tabulation or whenever the assembly motions, etc., to close the balloting. ?

I'm in a rush so will pass on the quorum question. I think you & others discussed this at length previously? How do YOU interpret the D-M citations your Inspector gave you???

Citations:

I don't see anywhere that balloting period can be extended to reach a quorum in an assessment increase election, unlike director election.

It is troublesome that inspector thinks this is a special assessment election and not what it is: an election to increase regular assessments over 20%.

KerryL1 (California)
Posts: 14,550

Posted:

Say, Terri, what are the exact words ON the ballot OR its cover letter that say "And our ballot says if there are mistakes on the returned ballot, a new ballot can be sent out."

NO ONE sees the ballot until the Inspector(s) opens the envelopes and counts them. Any ballot that isn't valid is NOT counted.

Aidyl also states "Ballots can be corrected prior to the closing of the polls." S/he insists that s/he showed us an opinion about this, but s/he did not. Since no ballot envelopes can be opened by the Inspector until AFTER the polls are closed, how could the voter correct it? How would they even know they made a mistake? The ballot is sealed in two envelopes. And, again in CA, HOA ballots are irrevocable.

What CAN happen and voting instructions that go out to all Owners with the ballots in my HOA note this on a Q & A about voting: It goes something like: "If you mark areas on the ballot that you see are mistaken, you may bring the ballot to [the inspector's designated site], give it to those charged with collecting them, who will destroy it, and give you a new clean ballot."

Terri also asked: "Kerry, you said ballots are kept where they are protected. Then how would the board know if any ballots/envelopes aren’t completed accurately." The ballots are locked in a secure container designated by the Inspector, and are unopened until the polls are closed with a motion by the members at the also. meeting, and the Inspector begins tabulating them. It is impossible for "the Board" to know if a voter made a mistake. In my HOA, the Board never even sees the completed ballots.

No matter how hard our PM & Board tries to write clear voting instructions, the Inspectors usually have to throw out 3 ballots (about 90 voters)

Board members, however, as with any owner may inspect the ballots once they've been tabulated and the results announced to the Board by the inspector. The ballots must be kept for review for one year.

I think I've asked before, Terri, on a different thread. What does your HOA's required Election Rules say about extending voting, if anything? What about your Bylaws? Or is your HOA not a corporation?

I cannot answer your other question becasue I don't think it applies. I agree with Aidyl that since voting is permitted to be extended for any other kinds of matters, I'd expect it can be extended in your case. The calendar alone will limit how long it can be extended since your HOA has a deadline by which to send next year's budget to owners.

TerriS6 (California)
Posts: 3,284

Posted:

Thank you. Please see my post above at 11/14/2023 1:51am for ballot language. Our rules say balloting period can be extended to achieve a quorum but our rules do not make a distinction between director and other elections.

Another problem is IOE is calling this a special assessment election when it is an election to increase regular assessments more than 20%.

And ballots can’t be returned at the member meeting. Our deadline to receive ballots is 3 hours prior.

Could you explain your budget comment? Thank you.

TerriS6 (California)
Posts: 3,284

Posted:

We are mutual benefit corporation.

TerriS6 (California)
Posts: 3,284

Posted:

Excerpts from our bizarre election rules:

Duties of inspector of elections include Closing and Reopening of Polls. Determine when the polls shall close and determine whether to
reopen the polls to allow Members to cast a ballot after the polls have been closed.

4.4 Secret Ballots. All secret ballots mailed or otherwise delivered to the membership will include a double- envelope system and voting instructions for returning the ballots and be delivered to every Member entitled to vote at least thirty (30) day before the initial voting deadline for those elections that require such voting methods.

a. Content of Ballots.
iii. For all elections, the ballot shall contain the date and time that the initial balloting period will close, the quorum requirement, and a statement that the balloting period may be extended if sufficient ballots have not been received to establish a quorum.

b. Signature. Ballots do not require a signature; however, ballots signed by Members remain valid.

c. Inner Envelope. The Association will provide two envelopes. To preserve secrecy, the ballot is to be placed within an inner envelope with no identifying information. However, information written on the inner envelope by a Member will not invalidate the ballot.

Quorum by Ballot. Each ballot received within a properly completed outer envelope from a Member is deemed as a Member present at a meeting for purposes of establishing a quorum. This applies even if the ballot has no markings on it.

TerriS6 (California)
Posts: 3,284

Posted:

Kerry, I see what you mean, the budget has to be sent by Dec 1.
Also, what about sending the notice of increased assessment? The election meeting to count ballots is 11/27 but notice to members is not until 15 days later which is past the date to send the notice?

TerriS6 (California)
Posts: 3,284

Posted:

From A/S website, nothing I can find would allow re-opening the polls.

"Approval Requirements. Approval by written ballot is valid only when the number of votes cast by ballot within the time period specified equals or exceeds the quorum required to be present at a meeting authorizing the action, and the number of approvals equals or exceeds the number of votes that would be required to approve at a meeting at which the total number of votes cast was the same as the number of votes cast by ballot. (Corp. Code § 7513(b).)"

TerriS6 (California)
Posts: 3,284

Posted:

Our bylaws state:

"c) The proposed action shall be considered approved if: (1) The number of votes cast by ballot within the specified time period equals or exceeds the quorum required to be present at a meeting authorizing the action; and (2) The number of approvals equals or exceeds the number of votes that would be required for approval at a meeting at which the total number of votes cast was the same as the number of votes cast by ballot. (d)No written ballot shall be revoked."

KerryL1 (California)
Posts: 14,550

Posted:

Your Election rules, which are a required governing document in CA HOAs were no doubt update in 2020 when new legislation required a bunch of crazy stuff. Many HOAs had their attorneys recite them. Some, like u mine, had the attorney vet the amendments to make sure everything was covered. Your clearly state:

"a. Content of Ballots. iii. For all elections, the ballot shall contain the date and time that the initial balloting period will close, the quorum requirement, and a statement that the balloting period may be extended if sufficient ballots have not been received to establish a quorum."

It's clear that balloting may be extended. There is no reasson why the Rules should name every possible balloting topic qualifies. They all do . And the date/time that balloting may be closed is set by the Board.

"The election meeting to count ballots is 11/27 but notice to members is not until 15 days later which is past the date to send the notice?" To what document or Civil Coe does the "15 days refer? Please cite exactly with the document or CA Code name.

Ah, I see the source of confusion: "If the board extends the balloting period, the Association may mail new ballots to members who have not previously returned a properly completed ballot." "Properly completed," understandably seems to mean that ballots declared invalid at the first tabulating meeting could be resent to voters who made the mistake so that they could "properly" complete them.

But the Inspector has no idea WHO turned in an invalid ballot because of the double envelope system. At the tabulation table, which must be situated so that all Owners may view the tabulation either in person or via, say, Zoom. The inspector opens all of the envelopes with signatures on them and sets them aside. Our inspectors shuffle the blank envelopes with ballots inside. They then begin opening the envelopes with no identifiers on them and begin tabulation.

It's great that you've learned so much about CA HOA legislation. But, to anyone, read your own governing documents first.

TerriS6 (California)
Posts: 3,284

Posted:

We never had election rules until 2021. How do you reconcile your comments with Corp Code sec 7513 where approval is only when ballots are returned within the specified time on the notice?

TerriS6 (California)
Posts: 3,284

Posted:

Our own governing documents are diluted by DS because our Declaration requires majority of members to approve assessment increase over 20% but DS only requires majority of a quorum.

KerryL1 (California)
Posts: 14,550

Posted:

I have no need to reconcile. Your 2021 Election Rules pretty much have the final word and were vetted or written by an HOA attorney. You seem to be grasping at straws.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By KerryL1 on 11/15/2023 11:22 AM
I have no need to reconcile. Your 2021 Election Rules pretty much have the final word and were vetted or written by an HOA attorney. You seem to be grasping at straws.

I thought it was a legitimate question since statutes supersede operating rules. Thanks for taking the time to answer.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By KerryL1 on 11/15/2023 11:22 AM
I have no need to reconcile. Your 2021 Election Rules pretty much have the final word and were vetted or written by an HOA attorney. You seem to be grasping at straws.

Terri often does this.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By JohnC46 on 11/15/2023 2:58 PM

Posted By KerryL1 on 11/15/2023 11:22 AM
I have no need to reconcile. Your 2021 Election Rules pretty much have the final word and were vetted or written by an HOA attorney. You seem to be grasping at straws.

Terri often does this.

It’s called paying attention to detail.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 11/15/2023 8:39 AM
From A/S website, nothing I can find would allow re-opening the polls.

"Approval Requirements. Approval by written ballot is valid only when the number of votes cast by ballot within the time period specified equals or exceeds the quorum required to be present at a meeting authorizing the action, and the number of approvals equals or exceeds the number of votes that would be required to approve at a meeting at which the total number of votes cast was the same as the number of votes cast by ballot. (Corp. Code § 7513(b).)"

I disagree that "within the time period specified" translates to a prohibition on extending the time for submitting ballots.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By ElleN on 11/15/2023 8:35 PM

Posted By TerriS6 on 11/15/2023 8:39 AM
From A/S website, nothing I can find would allow re-opening the polls.

"Approval Requirements. Approval by written ballot is valid only when the number of votes cast by ballot within the time period specified equals or exceeds the quorum required to be present at a meeting authorizing the action, and the number of approvals equals or exceeds the number of votes that would be required to approve at a meeting at which the total number of votes cast was the same as the number of votes cast by ballot. (Corp. Code § 7513(b).)"

I disagree that "within the time period specified" translates to a prohibition on extending the time for submitting ballots.

What do you think this statute means?

TerriS6 (California)
Posts: 3,284

Posted:

Our bylaws:

b) The ballot shall set forth the proposed action; provide an opportunity to specify approval or disapproval of any proposal. provide a reasonable time within which to return the ballot, indicate the number of responses needed to meet the quorum requirement, and state the percentage of approvals necessary to pass the measure submitted. (c) The proposed action shall be considered approved if: (1) The number of votes cast by ballot within the specified time period equals or exceeds the quorum required to be present at a meeting authorizing the action; and (2) The number of approvals equals or exceeds the number of votes that would be required for approval at a meeting at which the total number of votes cast was the same as the number of votes cast by ballot. (d)No written ballot shall be revoked.

KerryL1 (California)
Posts: 14,550

Posted:

Terri,

See that your other repeated issue is that the election is not about "special assessment, so isn't legal --or something. The below Civil Code show that the ballot may be about ANY assessments.

Your similarly repeated Corps. Code does not apply--Civil Code overrides it (and I'm not so sure there's conflict anyway)

Civil Code § 5100. Elections that Require Secret Balloting.
(a)

"(1) Notwithstanding any other law or provision of the governing documents, elections regarding assessments legally requiring a vote... shall be held by secret ballot in accordance with the procedures set forth in this article."

(e) In the event of a conflict between this article and the provisions of the Nonprofit Mutual Benefit Corporation Law (Part 3 (commencing with Section 7110) of Division 2 of Title 1 of the Corporations Code) relating to elections, the provisions of this article shall prevail. 

Civ. 5105 "(a) Election Rules
(4) Specify the voting power of each membership, the authenticity, validity, and effect of proxies, and the voting period for elections, including the times at which polls will open and close, consistent with the governing documents."
Your Election Rules state that balloting "may be extended" if quorum is not met.

4.4 "a. Content of Ballots. iii. For all elections, the ballot shall contain the date and time that the INITIAL balloting period will close, the quorum requirement, and a statement that the balloting period may be extended if sufficient ballots have not been received to establish a quorum."

I cannot see any recourse to small claims court given that your have no "preponderance" of evidence that this election is, um, "rigged."

TerriS6 (California)
Posts: 3,284

Posted:

The IOE is calling it a special assessment election when it isn’t.

The corp code does not conflict with the civil code. Our rules conflict with both codes because we have a substandard lawyer.

Our elections historically have been rigged.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 11/16/2023 5:37 AM

Posted By ElleN on 11/15/2023 8:35 PM

Posted By TerriS6 on 11/15/2023 8:39 AM
From A/S website, nothing I can find would allow re-opening the polls.

"Approval Requirements. Approval by written ballot is valid only when the number of votes cast by ballot within the time period specified equals or exceeds the quorum required to be present at a meeting authorizing the action, and the number of approvals equals or exceeds the number of votes that would be required to approve at a meeting at which the total number of votes cast was the same as the number of votes cast by ballot. (Corp. Code § 7513(b).)"

I disagree that "within the time period specified" translates to a prohibition on extending the time for submitting ballots.

What do you think this statute means?

I think it means that the "time period" specified has to be reasonable. I think extensions that are on the order of, say, a few weeks (or maybe a few months) are reasonable. After all, when a board favors approval of xyz, those opposing xyz have the same amount of time to campaign against it.

So far, I (for one) would not go to court over this aspect.

TerriS6 (California)
Posts: 3,284

Posted:

Civil Code says IOE determines poll closing. That has been determined. Board cannot participate in election. Corp Code requires votes ballot be returned within the specified time period. Election rules subservient to Civil and Corp codes.

KerryL1 (California)
Posts: 14,550

Posted:

Your Election Rules prevail on this topic, Terri. What you've cited from them are very similar to sections in my HOA's ERs. There is nothing that I can see that is "substandard" in your. Whatever your opinion of the HOA attorney, your Board needed to rely on that firm to compose this godawful document.

This section of CA Civil of is several pages long and renders Election Rules, a governing document, to be similarly long and a pain for boards, HOA attorneys and owners (if they bother to read them). Our Election Rules are 11 pages long.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 11/17/2023 7:35 AM
Civil Code says IOE determines poll closing. That has been determined.

You posted:

Quote:

Posted By TerriS6
The ballot sent to us states "If the board extends the balloting period, the Association may mail new ballots to members who have not previously returned a properly completed ballot."

IMO the IOE must go by what is on the ballot.

Posted By TerriS6 on 11/17/2023 7:35 AM
Board cannot participate in election.

The board can present the reasons why the assessment is needed. Though subsequently, the board must allow others to present a different viewpoint. See:

https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5135
https://www.davis-stirling.com/HOME/A/Advocacy-by-the-Board

I do not think there is a good case for objecting to anything you described.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By KerryL1 on 11/17/2023 7:42 AM
Your Election Rules prevail on this topic, Terri. What you've cited from them are very similar to sections in my HOA's ERs. There is nothing that I can see that is "substandard" in your. Whatever your opinion of the HOA attorney, your Board needed to rely on that firm to compose this godawful document.

This section of CA Civil of is several pages long and renders Election Rules, a governing document, to be similarly long and a pain for boards, HOA attorneys and owners (if they bother to read them). Our Election Rules are 11 pages long.

Civ code 5105
4) Specify the voting power of each membership, the authenticity, validity, and effect of proxies, and the voting period for elections, including the times at which polls will open and close, consistent with the governing documents.

Polls have a closing time. That's what deadline means. That's what within the specified time means. Operating rules never take precedence over applicable statutes. Our rules are 11 pages also. Director elections can be extended but not this one.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By ElleN on 11/17/2023 7:48 AM

Posted By TerriS6 on 11/17/2023 7:35 AM
Civil Code says IOE determines poll closing. That has been determined.

You posted:

Quote:

Posted By TerriS6
The ballot sent to us states "If the board extends the balloting period, the Association may mail new ballots to members who have not previously returned a properly completed ballot."

IMO the IOE must go by what is on the ballot.

Posted By TerriS6 on 11/17/2023 7:35 AM
Board cannot participate in election.

The board can present the reasons why the assessment is needed. Though subsequently, the board must allow others to present a different viewpoint. See:

https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5135
https://www.davis-stirling.com/HOME/A/Advocacy-by-the-Board

I do not think there is a good case for objecting to anything you described.

The IOE has to follow the law. A conflicting statement on the ballot does not release the inspector from his legal duties.

TerriS6 (California)
Posts: 3,284

Posted:

"The board can present the reasons why the assessment is needed. Though subsequently, the board must allow others to present a different viewpoint. See: "

That would never happen.

KerryL1 (California)
Posts: 14,550

Posted:

You're neglecting my citations above, Terri. I 'm not going to bother repeating any of my citations or arguments. Well, one LAST time: Your Election rules: 4.4 "a. Content of Ballots. iii. For all elections, the ballot shall contain the date and time that the INITIAL balloting period will close, the quorum requirement, and a statement that the balloting period may be extended if sufficient ballots have not been received to establish a quorum."

Once again, it is not always true that Corps. Code trumps Civil Code OR your Election Rules, which are governed by Civ. not Corps. When Civ. 5100 became effective on 1/1/20, Corps Codes no longer mattered on this topic. Your Election Rules prevail.

Our of all this, my advice, again, to you and anyone else is: read your own governing documents first.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By KerryL1 on 11/17/2023 8:26 AM
You're neglecting my citations above, Terri. I 'm not going to bother repeating any of my citations or arguments. Well, one LAST time: Your Election rules: 4.4 "a. Content of Ballots. iii. For all elections, the ballot shall contain the date and time that the INITIAL balloting period will close, the quorum requirement, and a statement that the balloting period may be extended if sufficient ballots have not been received to establish a quorum."

Once again, it is not always true that Corps. Code trumps Civil Code OR your Election Rules, which are governed by Civ. not Corps. When Civ. 5100 became effective on 1/1/20, Corps Codes no longer mattered on this topic. Your Election Rules prevail.

Our of all this, my advice, again, to you and anyone else is: read your own governing documents first.

And you are ignoring mine. Our rules are not consistent with the law. Director ballot counting can be extended in connection with a lower quorum. Assessment elections do not lower the quorum. Our ballot says the board can send out new ballots to members who have sent in ballots with errors. That is absurd. If you knew our board and our lawyer, you would not insist they are right. It helps to ask the question here in the forum because with all the back and forth, the answer does become clearer. To Say corp code doesn't matter in elections is incorrect. Election laws prevail but not the rules if they differ.

ElleN (Idaho)
Posts: 4,420

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Quote:

Posted By TerriS6 on 11/17/2023 8:09 AM
"The board can present the reasons why the assessment is needed. Though subsequently, the board must allow others to present a different viewpoint. See: "

That would never happen.

If the Board declines to present your or someone else's opposing point of view, then the board is violating a statute (5105 (a) (1), and there would be good grounds to sue, possibly in small claims court because this is an election dispute.

ElleN (Idaho)
Posts: 4,420

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Posted By TerriS6 on 11/17/2023 8:04 AM

The IOE has to follow the law. A conflicting statement on the ballot does not release the inspector from his legal duties.

I have doubts there is a conflict.

TerriS6 (California)
Posts: 3,284

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Posted By ElleN on 11/17/2023 8:47 AM

Posted By TerriS6 on 11/17/2023 8:09 AM
"The board can present the reasons why the assessment is needed. Though subsequently, the board must allow others to present a different viewpoint. See: "

That would never happen.

If the Board declines to present your or someone else's opposing point of view, then the board is violating a statute (5105 (a) (1), and there would be good grounds to sue, possibly in small claims court because this is an election dispute.

I wouldn't even try. It would be a waste of time.

JohnC46 (South Carolina)
Posts: 14,265

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Terri and Small Claims Court. A novel idea.

TerriS6 (California)
Posts: 3,284

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Association's election operating rules are at the bottom of the totem pole when it comes to authority.

TerriS6 (California)
Posts: 3,284

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Quote:

Posted By ElleN on 11/17/2023 8:57 AM

Posted By TerriS6 on 11/17/2023 8:04 AM

The IOE has to follow the law. A conflicting statement on the ballot does not release the inspector from his legal duties.

I have doubts there is a conflict.

Ballots are irrevocable. Ballot says they are not.

TerriS6 (California)
Posts: 3,284

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Posted By JohnC46 on 11/17/2023 9:01 AM
Terri and Small Claims Court. A novel idea.

An underutilized remedy.