HOA Board Member Election

How did you find out that this happened? Did you and your neighbors go to the board with your concerns? If so, what was the response (ultimately the board is responsible ensuring the integrity of the election).

If there's an indication the ballots weren't kept confidential, there may be grounds for a do-over, but first you need to see how this happened - and can prove it (you said the incumbent "apparently contacted homeowners" but how do you know, how many, etc,)

Did you see anything in writing from this attorney saying why the election was valid? I suppose no one asked about keeping the ballots confidential BEFORE the election, did they? Electronic voting has its advantages but you still need to know how ballot confidentiality is maintained. It's one thing to count the ballots and make sure whoever casts it is eligible, but you do the second thing first and c w a it until all vites have b een cast before they're counted.

You and your neighbors will have to insist on another election with impartial people doing the counting. Get together with them and read your documents to see what's required for a special homeowners meeting. There should also be instructions in them about running an election- look at that section as well.

Dana,

There is nothing in the TX Business Organizational Code, applicable if your Association is incorporated (most are but check to be sure) that requires a secret ballot to vote for Directors.

There is nothing in the TX CONDOMINIUMS CREATED BEFORE ADOPTION OF UNIFORM CONDOMINIUM ACT that requires a secret ballot to vote for Directors.

There is nothing in the TX UNIFORM CONDOMINIUM ACT that requires a secret ballot to vote for Directors

Per the TEXAS RESIDENTIAL PROPERTY OWNERS PROTECTION ACT does not require a secret ballot to vote for Directors. In fact, the statute does require signed ballots on any issue voted on outside of a meeting. An argument can be made that the electronic voting was done outside of a meeting and requires signed ballots (showing who voted for whom). Per Sec. 209.0058 of that act:

(a) Except as provided by Subsection (d), a vote cast by a member of a property owners' association must be in writing and signed by the member if the vote is cast:
(1) outside of a meeting;
(2) in an election to fill a position on the board;
(3) on a proposed adoption or amendment of a dedicatory instrument;
(4) on a proposed increase in the amount of a regular assessment or the proposed adoption of a special assessment; or
(5) on the proposed removal of a board member.
(a-1) If a property owners' association elects to use a ballot for a vote on a matter other than a matter described by Subsection (a), the ballot must be:
(1) in writing and signed by the member; or
(2) cast by secret ballot in accordance with Subsection (d).
(b) Electronic votes cast under Section 209.00592 constitute written and signed ballots.

All of that said, once the voting was done, all Directors would have access to all Association records (as they would no longer be candidates).
However, as you pointed out, as candidates they should not have been given access to those records and they were.

Therefore, I guess the question becomes: How strongly do you feel about this and are you willing to go through the expense and time legal action would require to have that election tossed and a new election done (keeping in mind that the end results of who is on the board might not change)?

If you are willing to go expend that time, energy and expense I would suggest you contact an attorney to determine what the costs might be and your chances of winning.

If you are not willing to expend that time, energy and expense, I would encourage you to gather support to allow yourself to become elected to the board to make the changes necessary so this does not happen in the future.

At the very least, you can ask the board what policies and procedures will be put in place to make sure there is compliance with the law in the future.

Hope this helps,

Tim

And make the management company pay for the election(s).

Ensuring the integrity of the election is the board's job, so this is their screw up - I might ask the property manager split the cost of a second election. Did tge manager talk to the association's attorney or their own? That may determine if you can get written documentation of the attorney's opinion because if comes down to who hired him. If the manager went to his/her attorney, you'll need to do what should have been done before electronic voting was made available- go to your own and discuss the situation and possible options.

In light of what Tim provided on Tennessee law (and you should still read your own documents), the board must decide if you let this stand or hold another election - if homeowners insist on another election, that's what you should do. You say there are 3 members and you're one of them - what does the third person have to say about this? If he or she agrees with you, you can outvote the incumbent.

If there's another election, use paper ballots and have people not related to any current or former board member count them in front of everyone at a homeowners meeting. If you still want to use electronic voting in the future, do your research, develop a policy on how it'll be handled and adopt it via board resolution during an open meeting.

Doesn't your HOA have an HOA attorney, Dana? Imo, the Board should vote to consult with them. The PM should have zero to do with this.

Thank you for the feedback. We were trying to understand the interpretation of the section quoted.

Seeing electronic ballots is having access to electronic ballots. Those forbidden by this law from having access to electronic ballots means thise ballots were supposed to be secret. The election is invalid.

Partially true.

TX law requires a signature on the electronic ballot for the ballot to be valid. Hence, the ballot itself is not secret.

Once a candidate becomes a Director, they would have access to this info, as it would be part of the Associations records for the general membership meeting.

Correction.
I suspect the board member had access to a spread sheet vs access where he could change an electronic ballot.

Dana wrote: "....the board members could actively see how each household was voting during the voting period. The individual re-running apparently contacted homeowners and advised them they needed to change their votes etc." Does anyone really think that the incumbents r behavior was OK?

I do not agree that "given access" means physically having it. I agree that read something is also access.

Need an election doomer if Dana et al know how to do it.
.

Good to see there are still some environmentalists in CA. LOL.

If you're talking about the association's attorney and you are not on the board, then the PM is correct since individual homeowners are not the attorney's clients. The association is the client.

Have you discussed this with your board colleagues? You said you were on the board, but attorneys cost money, so consulting one should be a group decision. I can understand why the incumbent wouldn't want an opposing opinion getting out if it puts his election at risk, but there are three of you and you still haven't said how he or she views all of this.

Perhaps both of them want to move on, and as long as it's two against one, you're not going to win this battle, at least not this way. If you really feel strongly about an election do over, you'll have to get more homeowners to push for it. That may mean you'll need to give up your seat, otherwise people may accuse you of bias against the newbie and/or you're mad you're not getting your way, and no 9ne will listen.

Tim asked earlier what you're willing to do to change this or at least get a straight answer about board candidates having access to the ballots. Change isn't easy nor does it happen overnight, and sometimes the person pushing for the change has to deal with pushback that can get ugly. So what are you going to do and how far are you willing to go?

The electronic ballots ARE required to be secret. See Sec 209.00594 subsection (c).