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Rouge Condo President?

Started by NancyD5 • 68 replies • 927 views

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NancyD5 (Wisconsin)
Posts: 71
Posted:
I previously sent questions regarding 'voting confusion regarding proxy and written ballot" and received good insight. Our Board is forcing us to vote on the budget and new board members with a written ballot BEFORE our meeting next week and aren't allowing any proxies either. We have no information as to how we are sitting financially since no year to date report was sent yet we are supposed just blindly approve their proposed budget for next year. Just over a third of us did as someone suggested here and wrote a letter to the president/board informing them and even documenting each of the 7 Bylaws and State Statues they are in violation of and instructed them to fix this by holding the vote according to the written documents or we will be forced to contest the vote at the meeting which then will lead to unnecessary association attorney fees for answers. It was sent by certified mail and was received yesterday. Just so you understand our Bylaw:

Bylaw 5.7 Vote by Written Ballot
At the discretion of the Board of Directors, any vote that may be taken at an annual or special meeting of the Members may be conducted by written ballot mailed to the Members. This shall include, but not be limited to, the election of officers and directors of the Association. Votes may be taken by written ballot in lieu of the annual meeting unless one-third (⅓) of the Members object in writing to the ballot and request that the annual meeting actually be held. With regard to any such vote by written ballot: (d) The written ballot shall clearly indicate:
4) Whether the written ballot is in lieu of the annual meeting and, if so, that an annual meeting will actually be held if requested by one third of the Members.

An email response from the president was received this morning stating:

"Our understanding of Article V, Section 5.7 “Vote by Written Ballot” reads: At the discretion of the Board of Directors, any vote that may be taken at an annual or special meeting of the Members may be conducted by written ballot mailed to the Members. This shall include, but not be limited to, the election of officers and directors of the Association. There is some discrepancy amongst members whether voting by mail can be done along with having the annual meeting, or only in lieu of holding the annual meeting. Our understanding is both.

We are stunned first, at his clear misunderstanding (?) of what the words "in lieu" of mean, his attitude of not caring about what the documents say regarding voting and our right to vote by proxy as we listed them all for him and lastly that a third of the members are objecting to this.
Looking for thoughts/suggestions as how to proceed. Thank you
SheliaH (Indiana)
Posts: 6,964
Posted:
What do your documents say about voting for the budget? Does that have to be done at the same meeting and under what circumstances do the members vote for it? You're correct that no one should vote for a budget without getting information on what the new budget will require and how that impacts assessments.

I think you already know the answer to your question, but in case someone has to spell it out: You said you and some of your neighbors co-signed a letter listing your concerns, sent it certified and received a response you don't agree with. Your next step is to do as you said you'd do. Start with sending a reply noting your concerns about the response and ask that the board consult with the assocition attorney to clarify this portion of the documents. Note the homeowners still haven't received information on the association's finances and so it's inappropriate to decide on the upcoming year's budget without all the pertinent information required to make an informed decision.

While you're waiting for that, get your group together and pass the hat to hire an attorney, meet with him or her to discuss the issue to ensure you understand that portion of the documents and have him/her write a nastygram to the board, with a request to postpone the meeting until your attorney and the association attorney can communicate to clarify that portion of the documents. It may not get that far, but if the letter becomes necessary, you'll also have to demand that the board send the year-end income/expense statement and balance sheets to the homeowners, with the proposed budget and an overview of any changes, and that must be received before the annual meeting. You should do this before the meeting obviously, but if you're running out of time, you'll have to get the attorney on this sooner rather than later. Good luck!

PS: if the current board is running for re-election, now's the time to rally together everyone else to vote them out. Hopefully, the candidates to replace them are in your group or are at least willing to listen to your concerns.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
ElleN (Idaho)
Posts: 4,420
Posted:
This is a small condo, of a few dozen units.

NancyD5,

I say: This is a game of legal "tennis." Deal with the board's response in automaton-like fashion, with no emotion, and writing down your options.

At this point I think your group should pound on the following from the Wi Condo Act and the Nonstock Corporation Act:

703.15(4) (d) 1.
At meetings of the association every unit owner is entitled to cast the number of votes appurtenant to his or her unit, as established in the declaration under s. 703.09 (1) (f). Unit owners may vote by proxy, but, the proxy is effective only for a maximum period of 180 days following its issuance, unless granted to a mortgagee or lessee. If only one of multiple owners of a unit is present at a meeting of the association, the owner is entitled to cast the votes allocated to that unit.

181.0724 Proxies. (1)
RIGHT TO VOTE BY PROXY. Unless the articles of incorporation or bylaws prohibit or limit proxy voting, a member may appoint a proxy to vote or otherwise act for the member by signing an appointment form either personally or by an attorney−in−fact.

I do not know how I missed the Condo Act's requirement that owners be permitted to vote by proxy, but I did. I wish someone would double check me, but unfortunately there are only a few people here who are willing to check statutes.

Write another letter to the board, elevating the tone. The letter would read something like the following:

Dear Board of Directors,

Thank you for your response. Our group does not agree with your interpretation. In particular, our group feels that the "in lieu of" means that voting at the meeting must be allowed.

Another reason our group believes that voting must be permitted at the annual meeting is because the Wisconsin Condo Statute and the Wisconsin Nonstock Corporation Act say voting by proxy must be allowed and voting at the meeting must be allowed. See Wisconsin statutes,703.15(4) (d) 1. and 181.0724 (1) .

If the board will kindly consult with the COA attorney, our group believes that this issue will be quickly resolved.

Please keep in mind that if the association does not comply with these statute sections and bylaws, then the results of the election may very well end up being invalid. Resolving this may cost more money.

Please let our group know by December 14 whether the COA intends to comply with the statute sections and bylaws and allow voting at the annual meeting.

Thank you for your assistance,

names
addresses
phone numbers
email addies

Send the letter certified mail, return receipt requested to the COA's registered agent, as listed at the Wisconsin Secretary of State site, corporations yada division.

I am writing this quickly. You will want to check my amateur's legal research. I am not an attorney.

Wisconsin Condo Act:
https://docs.legis.wisconsin.gov/statutes/statutes/703.pdf
NancyD5 (Wisconsin)
Posts: 71
Posted:
Thank you for responding. Our documents do not address voting on the budget as a separate issue with rules to be followed. The Bylaw I referenced previously is all we have discussing how to vote except another bylaw discussing having a quorum present and votes being cast in person or by proxy.

Just for clarification, they did send out a 2024 proposed budget but its one with changes made, including taking out the line item for attorney fees, that we have no idea why these changes were made. Our bylaws say that the members are to review and modify the proposed budget so this is important for us to do before we can ever vote on this. And also its hard to make a decision when we don't know how the money was spent in 2023. Also our state statues say we hare to be advised at our annual meeting of any surplus monies but he has refused to this since he's been in office the last 2 years.

I guess I was hoping maybe there was another way of handling this that I wasn't seeing without having to have us or the association, which is basically still us, having to incur attorney fees. So sad and frustrating that after years of this being handled per the documents that we have to fight to have that done now.

NancyD5 (Wisconsin)
Posts: 71
Posted:
ElleN (Idaho),

Thank you for responding. Yes we are very small development of 20 single family condo units with expenses only being for grass and snow removal.

The state statues you quoted were written out fully in our first letter along with the 3 bylaws stating basically the same but obviously he doesn't care. This man is an ex-sheriff and it seems no one tells him what to do. We will form another letter as you suggested and keep our fingers crossed he listens. And thank you for giving us an example to follow when writing this as we are totally unfamiliar with this type of thing.
NancyD5 (Wisconsin)
Posts: 71
Posted:
Forgot to add he IS the Registered Agent
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By NancyD5 on 12/07/2023 10:55 AM
The state statues you quoted were written out fully in our first letter along with the 3 bylaws stating basically the same but obviously he doesn't care.
I gather that this President-director pretty much runs the show there. No doubt in violation of statutes and bylaws.

It is probably time to lawyer up.
NancyD5 (Wisconsin)
Posts: 71
Posted:
ElleN,

Sadly you may be right. I just wanted to make sure I understood you that the deadline for them to response should be the date of the annual meeting on the 14th?
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By NancyD5 on 12/07/2023 11:20 AM
I just wanted to make sure I understood you that the deadline for them to response should be the date of the annual meeting on the 14th?
I was not paying attention to minutiae and just made up a date that seemed reasonable.

I suggest changing that date to Monday, Dec 10, 5 PM. You seem to have a good handle on the law here (probably better than I?) and are logical. Plus I am neither "boots on the ground" there, nor do I have the stake in this that your group does. Make any other adjustments that make sense to you.

Does the board/HOA president consult with a COA attorney, ever?

Another concern is notice. Given that --

-- the annual meeting is just a week away;

-- the fact that new notice is needed;

-- and even if the board agreed with your group that it goofed and needs to send new notice;

At this point I am betting notice requirements likely cannot be met. Maybe we should talk about this and start taking a slightly longer view of how to proceed? Because if this election happens, with violations of the bylaws and statutes present, your group is going to have to force the board to run another election. The force will be by legal means.

This is legal "tennis." Your group served. The board hit the ball back. The board's return might be out of bounds, but there's no telling until either a judge rules or maybe the COA attorney tells the board they need to fix the problems your group identified.

You are doing the right thing, IMO. This is a voting issue. It is not trivial. The legislatures and courts nationwide recognize that electing directors is thee principal means by which owners can control their association. Of all the rights owners in a COA have, I (and I think the courts and legislatures) believe that voting rights in particular need to be respected.
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By ElleN on 12/07/2023 11:37 AM
Posted By NancyD5 on 12/07/2023 11:20 AM
I just wanted to make sure I understood you that the deadline for them to response should be the date of the annual meeting on the 14th?
I was not paying attention to minutiae and just made up a date that seemed reasonable.

I suggest changing that date to Monday, Dec 10, 5 PM.
Post-o. I meant Dec 11. Not that it matters much, given the notice problems and how the next step (after the latest letter is sent) is already being contemplated (by me, anyway).
ElleN (Idaho)
Posts: 4,420
Posted:
From the Wisconsin Condo Act:

(c) No regular or special meeting of the association may be held except on at least 10 days’ written notice delivered or mailed to every unit owner at the address shown on the roster or unless waivers are duly executed by all unit owners.

Hence even if the board caved here, the annual meeting would have to be re-scheduled.

NancyD5, consider adding to the letter that notice requirements cannot be met so your group requests that the annual meeting be cancelled until this can be promptly resolved and a new annual meeting // promptly // re-scheduled.
CathyA3 (Ohio)
Posts: 6,299
Posted:
I'm curious. Has the board indicated why they chose to do it this way? Are they trying to manipulate the result of the vote? Or has there been an issue in the past of not getting people to attend the annual meeting - and they believe that by conducting a separate, mail-in vote they'll have more participation in the election. Condo owners have a reputation for apathy, so the latter scenario is plausible.

What happens at the "annual meeting" if the vote is held separately? Is the "annual meeting" more along the lines of a town hall meeting where no actual business is conducted? In which case the mailed-in ballots really were "in lieu of" the annual meeting, since the main (or entire) purpose of the annual meeting is to hold the election.

I would be concerned if I thought the board was trying to affect the outcome of the election or were trying to make it hard for people to vote. If they were trying to encourage more owners to vote, I think I'd be happy with that even if the method may not be optimal. Our annual meeting takes place in the first quarter of the year (think "cold and other lousy weather"), so we definitely would have more participants voting if we used mail-in balloting.

I may have a bigger issue with the lack of proxies, although you can make a good argument that they're not necessary if owners can vote instead. My remaining concern would be if you allow nominations from the floor (not all associations do), since the floor nominees would not receive votes if the vote is conducted early. There are ways to deal with this, though, so I'm not all that bothered by it.
NancyD5 (Wisconsin)
Posts: 71
Posted:
CathyA3, the board said in their email this morning that since they were running unopposed they wanted to get the assessment payment coupon books printed up with the new secretary's name them and have them ready to give out at the meeting. He is always under the impression that if he/they are running unopposed he/they win. One year he didn't even take a vote!

In the last 16 years we have only had one meeting each year and that is when we voted for the new Board and the new Budget. We may have talked about other things but the purpose of the annual meeting is to vote. This is highly irregular which is why a number are questioning it. We just don't have much other business to have meetings for since we only deal with grass maintenance and snow removal.

Both bylaws and state statues address in person voting and by proxy. Our previous proxies allowed the proxy person to vote for the owner on "any and all issues" that might come up during a meeting. This write in vote will not cover any issue someone might bring up and they decide to vote on it.

Just wish we could do what always has been done!
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By NancyD5 on 12/07/2023 1:24 PM
He is always under the impression that if he/they are running unopposed he/they win.
Do the bylaws authorize nominations from the floor?

If the bylaws do not authorize nominations from the floor, then how come you object to the president's assertion that candidates running unopposed translates to the candidates winning?

If quorum is not met, it's highly likely that the state's statutes say the incumbents continue as directors.
NancyD5 (Wisconsin)
Posts: 71
Posted:
Our bylaws don't say anything a how to handle nominations. In the past before this president we did have a write in candidate spot on the ballot.
KerryL1 (California)
Posts: 14,550
Posted:
If your Bylaws and state laws do not require nominations from the floor or write-in-candidate spaces on the ballot, you may not use those methods to vote OR such write ins on the ballot will not count though the ballot should count towards quorum.

Years ago, when CA permitted mail-in ballots, no-one every voted by proxy again in our condo bldg. There always have been enough mail-in ballots that quorum was achieved. So, with Cathy in OH, this is a very healthy thing for your condo assoc.

It also sounds like your Board wants to declare the candidates as elected by "Acclamation." There might be an exact procedure to follow in your statutes or Bylaws to do this, but if done correctly, it's possible in your state or HOA that no ballots even needed to be sent out.

I'm sorry that I can't seem to follow the budget issues so will not comment.
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By NancyD5 on 12/07/2023 1:44 PM
In the past before this president we did have a write in candidate spot on the ballot.
Okay, got it.

I disagree with KerryL1 about write-ins being lawful only if the bylaws (or state statutes) provide for write-ins. A board adding restrictions, that are not in the bylaws or state law, is what is prohibited in the law of covenants. Allowing write-ins is not a restriction.
KerryL1 (California)
Posts: 14,550
Posted:
Write ins would b need to be in the Bylaws. Bylaw may only be amended in certain ways by certain folks. Maybe the board can amend; maybe any amendments requires a vote of the members. HOAs (and WHO would this be?) certainly may not add any NONrestrictions they want without proper procedures. Such additions are called "amendments," and, generally, the procedures are near the end of the Bylaws documents.
ElleN (Idaho)
Posts: 4,420
Posted:
KerryL1, you wrongly assume that statutes and bylaws must address every last detail of what can be printed on ballots; how elections are run; and how HOAs must be run.
TerriS6 (California)
Posts: 3,284
Posted:
Quote:
Posted By AidylP1 on 12/07/2023 5:36 PM
In California, unless required through the Bylaws, floor nominations, and write-in candidates do not have to be included in the association's election rules

What about 5105 f) Notwithstanding any other law, the rules adopted pursuant to this section may provide for the nomination of candidates from the floor of membership meetings or nomination by any other manner. Those rules may permit write-in candidates for ballots.
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By TerriS6 on 12/08/2023 10:22 AM
What about 5105 f) Notwithstanding any other law, the rules adopted pursuant to this section may provide for the nomination of candidates from the floor of membership meetings or nomination by any other manner. Those rules may permit write-in candidates for ballots.
Excellent work, AFAIC.

The full statute section appears at https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5105
KerryL1 (California)
Posts: 14,550
Posted:
NB: I did NOT bring up Calif.

I'm curious to see if either Terri or elle will share HOW a new rule may be made in CA to allow either nominations from the floor or write-in candidates. Can a board member motion to permit them at a meeting and if a majority of the Board approves, voters have a new election choice? Related: How long before an election must this new option be approved in CA?

Btw, with required secret ballots that may be mailed back to the assoc. or dropped off at a designated spot, and with no requirement for attendance at the Annual Meeting & Election, it's much easier to make quorum. Because of this, no one in my 200+ HOA has used proxies in many, many years. Our '22 Bylaws rewrite eliminated proxies, write-ins and nominations from the floor. The latter would never be successful, because 99% of our voters return their completed secret ballot well ahead of the vote-counting meeting.
TerriS6 (California)
Posts: 3,284
Posted:
IOEs can be required to attend meeting in person if board approves the rules that way. As you know election rules can’t be changed within 90 days of an election. I didn’t write the law, I just quoted it.
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By KerryL1 on 12/09/2023 10:09 AM
NB: I did NOT bring up Calif.
You made a statement that is not supported in California. You should know better.
Quote:
Posted By KerryL1 on 12/09/2023 10:09 AM
I'm curious to see if either Terri or elle will share HOW a new rule may be made in CA to allow either nominations from the floor or write-in candidates. Can a board member motion to permit them at a meeting and if a majority of the Board approves, voters have a new election choice? Related: How long before an election must this new option be approved in CA?
Kerry, it is interesting that you do not know the answers to these questions. For how to proceed, all boards need to start by checking the statute sections and the bylaws. California statutes have a lot to say about this. Start reading.

KerryL1 (California)
Posts: 14,550
Posted:
I see I wrote that to add write-ins or floor noms bylaws would have to amended. Put another way, a board presider may not simply announce, "oh, by the way, if you want to make a nomination from the floor, please do it now." Or, "if you haven't voted yet, write-ins are acceptable."

In CA, these are or are not in Bylaws. If they are not in the Bylaws, as Aidyl wrote, or some other governing document, owners may not add write-ins nor floor noms. BUT, what is the "somewhere else" that isn't typical in other states? How are these options placed there? I do know the answer, but I don't think Terri or elle want to state it.

Terri wrote something about IOEs --Inspectors of Election-- who have zero to do with this topic. This seems to be an example of, as Elle graciously wrote on a different thread to to Terri, "You have made egregious errors concerning what the law says." And, "I have seen enough of your blunders and misconceptions.."
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By KerryL1 on 12/09/2023 1:34 PM
In CA, these are or are not in Bylaws. If they are not in the Bylaws, as Aidyl wrote, or some other governing document, owners may not add write-ins nor floor noms.
Your writing is kind of messed up here AFAIC, but whatever you are trying to say, I think we can all read Civ Code 5105 at this point.
div class="NTForums_Quote">Posted By KerryL1 on 12/09/2023 1:34 PM
BUT, what is the "somewhere else" that isn't typical in other states? How are these options placed there?
I can only guess at what you are trying to say here. Are you asking: Outside of California, and maybe especially in Wisconsin, how does a board cause write-in nominations to be allowed?

You say you know the answer. So do I. I guess the discussion is concluded.
TerriS6 (California)
Posts: 3,284
Posted:
Quote:
Posted By KerryL1 on 12/09/2023 1:34 PM
I see I wrote that to add write-ins or floor noms bylaws would have to amended. Put another way, a board presider may not simply announce, "oh, by the way, if you want to make a nomination from the floor, please do it now." Or, "if you haven't voted yet, write-ins are acceptable."

In CA, these are or are not in Bylaws. If they are not in the Bylaws, as Aidyl wrote, or some other governing document, owners may not add write-ins nor floor noms. BUT, what is the "somewhere else" that isn't typical in other states? How are these options placed there? I do know the answer, but I don't think Terri or elle want to state it.

Terri wrote something about IOEs --Inspectors of Election-- who have zero to do with this topic. This seems to be an example of, as Elle graciously wrote on a different thread to to Terri, "You have made egregious errors concerning what the law says." And, "I have seen enough of your blunders and misconceptions.."

If your bylaws or election rules have not incorporated a required election statute, you still have to follow the statute. The board doesn't need to approve an election requirement that has been chaptered. IOEs have to accept and remain in possession of the ballots during the election, including the ones brought to the meeting. IOEs have nothing to do with elections? Huh?
TerriS6 (California)
Posts: 3,284
Posted:
It's pretty bizarre to get insulted just for quoting a statute.
NancyD5 (Wisconsin)
Posts: 71
Posted:
Well my friends an interesting development. Board president sent out an email to AL the association members saying that the new board and the new budget were passed and adopted. He also said the annual meeting on the 14th will be canceled. He then went into a tirade against all us members who signed the 2 letters requesting that they follow our documents and a do the vote in-person for both these issues at the annual meeting as it has been done for the last 17 years. He made sure to name each particular member in his email and accused us of threatening them and making unreasonable demands of the board members. After a little bit more of berating these members for interfering with the board work which they all elected them to do he then stated they all will be resigning a the end of the year.
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By NancyD5 on 12/09/2023 7:21 PM
Well my friends an interesting development. Board president sent out an email to AL the association members saying that the new board and the new budget were passed and adopted. He also said the annual meeting on the 14th will be canceled.
The above resulted in my first LOL.
Quote:
Posted By NancyD5 on 12/09/2023 7:21 PM
He then went into a tirade against all us members who signed the 2 letters requesting that they follow our documents and a do the vote in-person for both these issues at the annual meeting as it has been done for the last 17 years. He made sure to name each particular member in his email and accused us of threatening them and making unreasonable demands of the board members. After a little bit more of berating these members for interfering with the board work which they all elected them to do he then stated they all will be resigning a the end of the year.
Funny guy. And I believe not entirely competent. Though I think one must give him credit for serving in a thankless, uncompensated position and keeping the place from burning down (as I am saying a lot lately).

Are you hoping he keeps his word and resigns? Do you have people to replace him?

I wish there were a way to lock him into this resignation. Unfortunately I think the legal rule is that he has the right to rescind the resignation anytime before the date he specified as his resignation date. Anticipate that he will rescind it?

ElleN (Idaho)
Posts: 4,420
Posted:
Best practices: Make sure the president-director has indicated he will resign both as president // and // as director.
NancyD5 (Wisconsin)
Posts: 71
Posted:
ElleN, Yes I am hoping he will do just as he said he will at the end of the month. I do wonder though his reasons. Is it just that he isn't going to allow anyone to tell him how to do anything or is it that he doesn't want to face unhappy members who want him to answer what happen in 2023 financially. He'd be a great person to be on a grounds/maintenance committee but he lacks the discipline to follow laws. I was shocked to hear he installed a sprinkler system in front of his single family condo on land that is in the common area. He does the leg work but fails to check our laws to see if what he's doing is legal or not. We all paid for a large stone with our development name on which was nice but he placed that on the common area too which our docs prohibited any improvement being erected, installed, placed or constructed on.

Right now I believe two men are possibly interested in running after they resign. Not sure about the Secretary/Treasurer position though.

JamesB37 (California)
Posts: 351
Posted:
Quote:
Posted By KerryL1 on 12/09/2023 10:09 AM
NB: I did NOT bring up Calif.

I'm curious to see if either Terri or elle will share HOW a new rule may be made in CA to allow either nominations from the floor or write-in candidates. Can a board member motion to permit them at a meeting and if a majority of the Board approves, voters have a new election choice? Related: How long before an election must this new option be approved in CA?

It is my understanding, per 5105(a) that Election Rules are in fact 'Operating Rules'
"An association shall adopt operating rules..."

4340
ARTICLE 5. Operating Rules [4340 - 4370] ( Article 5 added by Stats. 2012, Ch. 180, Sec. 2. )

4340.
(a) “Operating rule” means a regulation adopted by the board that applies generally to the management and operation of the common interest development or the conduct of the business and affairs of the association.

(b) “Rule change” means the adoption, amendment, or repeal of an operating rule by the board.

So as Teri pointed out, 5105 (f) allows for the creation of an operating rule (election rules) that would allow floor nominations/write in candidates. As we know, passing a new operating consists of sending out the proposed rule, for a 28-day comment period and then the board can pass the rule. (if they are changing an existing operating rule, then the reason for and the effect of the change needs to be included)

Frankly, when the HOA attorney rewrote our Election Rules in 2020, it appears they added floor nominations/write-ins, which have caused us a lot of aggravation. (There is nothing in our other governing documents indicating they can or can't, so that operating rule stands for now)

and you can't change election rules within 90 days of the election

I have found this document to be helpful when it comes to election rules in California regarding the 2020 changes
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ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By NancyD5 on 12/09/2023 8:57 PM
ElleN, Yes I am hoping he will do just as he said he will at the end of the month. I do wonder though his reasons. Is it just that he isn't going to allow anyone to tell him how to do anything or is it that he doesn't want to face unhappy members who want him to answer what happen in 2023 financially.
My take: When Owner X heaps criticism (as constructive and legally appropriate as it may be) on Director/Officer Y, in my experience it is not uncommon for Director/Officer Y to take all his/her marbles, go home and quit. They are doing all this volunteer work, for no pay et cetera, and it's just not worth it to them to to be told they are doing a bad job as well. Ego and all.

On the other hand, if one does not want to serve on the board one's self, to me this argues for not criticizing. Instead, one might consider being happy that Director/Officer Y is willing to do all the work of not letting the place burn down, as flawed as this work might be. Not that this is the case here. It's a "just saying" to those who like to criticize and are not willing to step up themselves.

ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By JamesB37 on 12/09/2023 8:57 PM
when the HOA attorney rewrote our Election Rules in 2020, it appears they added floor nominations/write-ins, which have caused us a lot of aggravation. (There is nothing in our other governing documents indicating they can or can't, so that operating rule stands for now)
?

Suppose a California HOA's bylaws said that write-ins are not allowed. This bylaw would represent a genuine conflict with Civ Code 5105 (f). In a conflict, the statute controls. In other words and ceteris paribus, this operating rule (allowing write-ins) would stand regardless of what the governing documents say.
JamesB37 (California)
Posts: 351
Posted:
Quote:
Posted By ElleN on 12/10/2023 7:35 AM
Posted By JamesB37 on 12/09/2023 8:57 PM
when the HOA attorney rewrote our Election Rules in 2020, it appears they added floor nominations/write-ins, which have caused us a lot of aggravation. (There is nothing in our other governing documents indicating they can or can't, so that operating rule stands for now)
?

Suppose a California HOA's bylaws said that write-ins are not allowed. This bylaw would represent a genuine conflict with Civ Code 5105 (f). In a conflict, the statute controls. In other words and ceteris paribus, this operating rule (allowing write-ins) would stand regardless of what the governing documents say.

5105 (f) uses the word 'may', not 'shall' - meaning it is optional.

"Notwithstanding any other law, the rules adopted pursuant to this section *may* provide for the nomination of candidates from the floor of membership meetings or nomination by any other manner. Those rules *may* permit write-in candidates for ballots".

Another thing to think about is an 'election by acclamation' which would greatly simplify things. In an uncontested election, just give the positions to the candidates who submitted their names. You save on all the drama, and you save on all the costs associated with an election by written ballot. However, the ability to nominate from the floor or use write in candidates would have to be removed. Again, I don't see why these attorneys that rewrote everyone's election laws in 2020 would add floor nominations/write in's to begin with

https://www.davis-stirling.com/HOME/U/Uncontested-Elections-by-Acclamation

ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By JamesB37 on 12/10/2023 9:55 AM
5105 (f) uses the word 'may', not 'shall' - meaning it is optional.
Because of the "notwithstanding any other law" phrase in 5105 (f), the "may" is translated to a statutory award of a legal right. See https://www.davis-stirling.com/HOME/R/Rules-of-CC-R-Interpretation, the "Statute Overrides" section.

I stand by my position.
TerriS6 (California)
Posts: 3,284
Posted:
"May" is permissive; "shall" is mandatory.
JamesB37 (California)
Posts: 351
Posted:
Do you believe in the 'Plain Meaning Rule'?
JamesB37 (California)
Posts: 351
Posted:
and, under the davis-stirling link I provided for uncontested elections, using acclamation they wrote:

boards should, at some point, amend their election rules to include this provision. Doing so will eliminate any confusion by members regarding the propriety of elections by acclamation. When amending documents, boards should also eliminate write-ins and floor nominations, quorum requirements, proxies, and cumulative voting.

Why would D-S suggest that associations 'eliminate write-ins and floor nominations' if homeowners had a 'legal right' to do so?
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By JamesB37 on 12/10/2023 11:45 AM
and, under the davis-stirling link I provided for uncontested elections, using acclamation they wrote:

boards should, at some point, amend their election rules to include this provision. Doing so will eliminate any confusion by members regarding the propriety of elections by acclamation. When amending documents, boards should also eliminate write-ins and floor nominations, quorum requirements, proxies, and cumulative voting.

Why would D-S suggest that associations 'eliminate write-ins and floor nominations' if homeowners had a 'legal right' to do so?
I said (or tried to say) that per California statute, and regardless of what the bylaws say, boards have a legal right to create a rule allowing write-ins and/or floor nomination and have this supported in court.

If say the bylaws prohibit write-ins; the board creates a rule saying write-ins are allowed; and all the procedural requirements for this board-created rule are met, then IMO a court would say that Civ Code 5105 (f) gives the board the lawful authority to create this rule (allowing owners to write-in nominees) and have it enforced.

Civ Code 5105 (f) says:

Notwithstanding any other law, the rules adopted pursuant to this section may provide for the nomination of candidates from the floor of membership meetings or nomination by any other manner. Those rules may permit write-in candidates for ballots.

This does not require boards to enact a rule to allow write-ins or floor nominations. The law merely gives the board the option to enact such a rule.

If a California board does not enact such a rule, and the bylaws are silent, then owners may not do write-ins or nominate from the floor.

TerriS6, no that's not always true. The courts have spoken of this at length.

ElleN (Idaho)
Posts: 4,420
Posted:
JamesB37, the plain meaning rule is an important aspect of statutory and contract interpretation. It's not a matter of believing it. It's a matter of respecting what the courts say it is. And I do.

The courts have spoken many many times to this "may" vs. "shall" business. If you want some California citations, I will try to pull them up for you.

It's not the same for every state. Nor is it the same for every statute in any given state. Nor is it the same for all contracts (or HOA Declarations) in any given state. There is an "it depends" factor.
ElleN (Idaho)
Posts: 4,420
Posted:
JamesB37, question for you. Assume --

-- the bylaws are silent about directors attending board meetings by teleconference.

-- the board creates a rule prohibiting directors from participating in board meetings by teleconference.

Look at Corp Code 7211 (a) (6). The latter says (among other things): "Directors may participate in a meeting through use of conference telephone... ". See https://www.davis-stirling.com/HOME/Statutes/Corp-Code-7211

Does the board's rule, prohibiting attendance by teleconference, violate the statute?
TerriS6 (California)
Posts: 3,284
Posted:
I like cumulative voting. Lets the underdog have a say.
TerriS6 (California)
Posts: 3,284
Posted:
The board’s rule violates other statutes. Not a serious question.
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By TerriS6 on 12/10/2023 12:42 PM
The board’s rule violates other statutes.
You would have to cite them for me to believe you.

Meanwhile, I want to know if James thinks the board rule violates the statute section I cited.
TerriS6 (California)
Posts: 3,284
Posted:
You know where they are. No need to play games with serious people.
TerriS6 (California)
Posts: 3,284
Posted:
You know where they are. No need to play games with serious people.
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By ElleN on 12/10/2023 12:48 PM
I want to know if James thinks the board rule violates the statute section I cited.
This is not a "gotcha" set up. It's an exploration of what "may" means when it is used the way it is in the statute section I cited.

Aside: It's also a chance for a certain someone to snipe at me about this specific statute section (regarding directors having a statutory right to attend by teleconference). A few years ago this certain someone said what I am saying today. A few years ago I disagreed with this certain someone. Some months later I read more and realized I was wrong.
JamesB37 (California)
Posts: 351
Posted:
Elle
I am not sure how we got sidetracked on this, because I think we both agree floor nominations/write-ins are optional

in your example, the Board created an 'operating rule' that conflicted with State Law. So yes, I would say the operating rule violates the statute

For clarification, and for others not familiar, there is a hierarchy when it comes to applying these laws and rules

California Civil Code section 4205in this order)
Federal & State Law
Declaration
Articles of Incorporation
Bylaws
Operating Rules

in the example regarding Civ Code 5105 (f)
-- the bylaws are silent about allowing nominations from the floor or write in candidates
-- the board creates an operating rule *allowing* floor nominations or write in candidates

I don't see a conflict. It's a choice. The board at one point chose to create election rules (an operating rule) allowing floor nominations/write-ins and they can now choose to remove floor nominations/write-ins. (that is how I see it)

Terri - In my opinion, the only thing better than cumulative voting is removing ANY quorum requirement. Of course, most Board Members would be opposed to doing that, because then they may have to actually work to keep their position on the board. The way it stands now in most HOA's in California, it is in the Board's best interest to downplay the annual elections. Do the bare minimum required by law, hope nobody shows up at the actual annual meeting, let alone actually vote in the election.

I found this on Reddit the other night when I was looking something up - it's quite a read and just goes to show you the games some of these boards play to keep their position:

---------------------------------------------------------------------------------------------------------------

New owner in a fierce battle with an incumbent HOA board.

California, city in Orange County, almost 700 homes, mostly high end SFH homes to townhouse style condos ($1m to $5m)

There've been ongoing complaints about the bullying tactic of the President for years. He controls the Board, who are just yes men (5 board members).

In May 2023, he and another board member were up for election.

Due to the fact that we almost never achieve quorum (25%), we launched a stealth campaign to write in 2 candidates, then gathered ballots and proxies.

The result: we had about 170 votes for our 2 candidates, 40 for President and 25 for other incumbent.

I was at the Inspector of Elections the night of, when they opened ballots, while others were on Zoom call.

They asked quietly if there were any nominations from the floor, paused, then moved on.

We were all confused what that was. I asked what does that mean.

They said if you didn't nominate any candidate from the floor, any write-in candidates were not valid.

Thus, they disqualified all of our ballots and wouldn't even give us a count of how many we had.

Naturally we were furious. My mistake was not having a copy of the Election Rules handy.

It wasn't until later that I read our Election Rules clearly allowed write-ins:

"Section 5.4 - Write-in Candidates - Write-in candidates are permitted, provided they meet the required Candidate Qualification" (Must be record owner, current in assessments, etc.)

Owners bombarded the property management company with complaints, so they were forced to set up a "redo" election coming up Oct 11.

Their excuses for why kept changing: didn't nominate from floor, they alleged some proxies looked suspicious, they blamed the Inspector of Elections for not sending all owners a proxy as required by our Rules, etc.

Fast forward to today.

They've done everything possible to confuse this "redo" election:

-Ballots mailed out at the very latest window required by law (30 days), with some owners not receiving it

-Proxies mailed out early and separate which confused owners

-Ballots left off half of the owners, mostly women. When confronted, the Inspector blamed the PM company for sending them an "incomplete file", but now they have a complete file.

-Myself, being the campaign lead, and one of the candidates have been served with Violation Notices coincidentally. Mine had a due date only 36 hours from when I received it. When I challenged it, they blamed it on a glitch and moved it to 45 days.

-A board member not up for election sent out 3 separate email blasts, attacking me (not by name) viciously, then attacking and lying about our two candidates (which also violates our Election Rules).

-They plan to mass email links to electronically sign proxies to all homeowners. I protested to the PM and Inspector that this is illegal.

-On the monthly board meeting during open forum, they wouldn't answer questions. Their attorney was on and shut me down, then they muted me when my 3 mins was up.

Sorry that this is so long, but it's been crazy times. I wouldn't even believe it had I not lived it.

My question is, if they come up with some reason to overturn this redo election, what else can we do?

My thoughts:

File a case in Small Claims Court. Present all the evidence from the first and upcoming election, ask judge to declare our candidates as rightful winners (if we win, which we are on track to).

Initiate a recall of all 5 board members (3 if we win and kick out the current 2).

Anyone with experience in combating a super corrupt board that basically does whatever it wants?

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