Annual Election - write in candidates

Started by RobertG12 • 12 replies • 3554 views

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RobertG12 (Arizona)
Posts: 160

Posted:

I am interested in comments on how to interpt the AZ law about voting with respect to ballots for the Board of Directors. [the law is below]. In particular, do you think this (1) allows write in candidates for those who choose to mail in the ballot, (2) candidates to be nominated from the floor during the annual meeting?

33-1812. Proxies; absentee ballots; definition
A. Notwithstanding any provision in the community documents, after termination of the period of declarant control, votes allocated to a unit may not be cast pursuant to a proxy. The association shall provide for votes to be cast in person and by absentee ballot and may provide for voting by some other form of delivery. Notwithstanding section 10-3708 or the provisions of the community documents, any action taken at an annual, regular or special meeting of the members shall comply with all of the following if absentee ballots are used:

1. The absentee ballot shall set forth each proposed action.

2. The absentee ballot shall provide an opportunity to vote for or against each proposed action.

3. The absentee ballot is valid for only one specified election or meeting of the members and expires automatically after the completion of the election or meeting.

4. The absentee ballot specifies the time and date by which the ballot must be delivered to the board of directors in order to be counted, which shall be at least seven days after the date that the board delivers the unvoted absentee ballot to the member.

5. The absentee ballot does not authorize another person to cast votes on behalf of the member.

B. Votes cast by absentee ballot or other form of delivery are valid for the purpose of establishing a quorum.
[sections C & D left off]

MaryA1 (Arizona)
Posts: 7,043

Posted:

Robert,

Because the statute explicitly says "The absentee ballot shall provide an opportunity to vote for or against each proposed action", means you cannot have nominations from the floor as those nominations would not be on the ballot that everyone received. I know this is the interpretation of HOA attorneys. I haven't heard any discussions regarding write-in candidates, but IMO, I think the same would apply -- it cannot be done.

Also, it should be noted that this statute applies to all voting by members, not just for electing board members. Proxies cannot be used for anything!

RobertG12 (Arizona)
Posts: 160

Posted:

Mary, I was hoping you would have a comment. There is a long and not so funny story about the issue that I may relate later. However, the HOA attorney stated, when asked, that this did not apply to either write in or nominations from the floor. I pointed out the statute and he, and the rest of the members didn't accept it and the write-in candidates were allowed.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Your section talks about absentee ballots only and not the election process.

Absentee ballots should be used ONLY when there is a really good reason why a person could not attend the annual meeting.

It is NOT the same thing as a written ballots, where everyone understands that this is the only ballot, to be returned by mail to the board, and can be used in establishing a proxy and for voting.

People who use absentee ballots and written ballots miss all the "action" of the live meeting, where there could be debate, amendments, withdrawals, postponements, announcments of write-in candidates, and all kinds of excitment.

I agree with the lawyer. Nominations from the floor and write-ins are not covered by what you have quoted here and would be allowed, especially if you follow Roberts Rules.

RobertG12 (Arizona)
Posts: 160

Posted:

Quote:

Posted By SusanW1 on 04/11/2009 10:34 AM
Your section talks about absentee ballots only and not the election process.

Absentee ballots should be used ONLY when there is a really good reason why a person could not attend the annual meeting.

It is NOT the same thing as a written ballots, where everyone understands that this is the only ballot, to be returned by mail to the board, and can be used in establishing a proxy and for voting.

People who use absentee ballots and written ballots miss all the "action" of the live meeting, where there could be debate, amendments, withdrawals, postponements, announcments of write-in candidates, and all kinds of excitment.

I agree with the lawyer. Nominations from the floor and write-ins are not covered by what you have quoted here and would be allowed, especially if you follow Roberts Rules.

Susan, interesting comments. However,

The I don't see how you can say that an absentee ballot and written ballot are not the same. A ballot that is sent to the owner and the owner has the option of either sending it in early (voting in absentia) or bringing it to the meeting is the same in my mind. Notice the part "The association shall provide for votes to be cast in person and by absentee ballot and may provide for voting by some other form of delivery."

If you need about 100 members for quorum and regularly see only about 20 owners at a meeting, then you will need to provide alternate means to elect a board. As much as it would be nice, I don't see any reason people should have to come to the annual meeting.

The HOA never adopted Roberts Rules, thus that can't be used anyway.

SusanW1 (Michigan)
Posts: 5,202

Posted:

An absentee ballot is a paper ballot used to vote by voters who expect to be absent from their polling place on the day of election. In an election, the ballot will only list those candidates that were in the running when the ballot was printed. The Absentee Ballot has to be mailed in and verified and the ballot is opened at the meeting. As I said before, the person who casts an absentee ballot misses the nominations from the floor and the write-in candidates whose names are announced at the meeting that they are a candicate. the Absentee Ballots are counted with the live votes cast at the meeting.

A mail-in written ballot election is done strictly by mail and includes a "closed" candidate slate to chose from. All candidates had a deadline in which to announce their category. The ballot is printed and mailed to all members. At the meeting, there are no nominations from the floor, but write-ins can be added to the written ballot. All ballots must be turned in before the meeting starts and the "election" is really a counting of the ballots.

Your script just says that the board must supply a means for people to vote, either by absentee ballot or other ways to be determined by the board. This just guarantees that absentee ballots ARE to be accepted for the vote (and can probably be used to help establish a quorum, depending on your bylaws and state statutes.)

"by other means" can also mean electronically. (Those in the "under 40 crowd" do everything this way, and boards are wise to get ready for voting by email and text!

MaryA1 (Arizona)
Posts: 7,043

Posted:

Susan,

Apparently you do not understand the AZ law. First of all an absentee ballot and a written ballot are the same thing. The only difference is that the absentee ballot is mailed in. If a member chooses to bring his ballot to the meeting, he will be bringing the same ballot as the member who sent in his "absentee" ballot.

The AZ statutes does not specifically say there shall be no nominations from the floor or write-in candidates, however it is explicit in saying that ALL actions to be voted on must be stated on the ballot (meaning the ballot that is mailed to all members). Common sense tells me if someone is nominated from the floor or someone's name is written in on a ballot those two actions were not stated on the ballot that was mailed in and would be a violation of the law.

Sorry, but State law takes precedence over Roberts Rules of Order!

MaryA1 (Arizona)
Posts: 7,043

Posted:

Quote:

Posted By RobertG12 on 04/11/2009 10:21 AM
Mary, I was hoping you would have a comment. There is a long and not so funny story about the issue that I may relate later. However, the HOA attorney stated, when asked, that this did not apply to either write in or nominations from the floor. I pointed out the statute and he, and the rest of the members didn't accept it and the write-in candidates were allowed.

Robert,

Funny you should mention the HOA attorney's opinion of the statute. A few months after the statute became law, our annual meeting took place. In the packet announcing the meeting was a notice from the board Pres. that nominations from the floor would be taken. I emailed our PM and told her that would be in violation of the new law. She responded telling me their attorney had advised them it was OK. I let it go because we never have any nominations from the floor anyhow. Well, fast forward one year to the next annual meeting. At the meeting the Pres announced their attorney had advised the board there could be NO nominations from the floor because that would be a violation of the state law. I didn't say "I told you so!" but had a good chuckle. I know sometimes it takes awhile to really digest the meaning of some of these laws. I like to think that's what happened with our attorney and perhaps yours, but of course we all know the attorneys don't always know what they're talking about.

RobertG12 (Arizona)
Posts: 160

Posted:

Susan, to amplify Mary's point. The law states that for an open meeting to be properly conducted, everyone voting must be able to have the opportunity to express an opinion for or against any action taken before a vote. If someone is put in as a write-in candidate and mailed in, then that person would not be known to all the members and thus not have an opportunity to vote for or against. The same holds for nominations from the floor. Those who mailed in their ballot would not know who they are and could not express their action for or against them.

RobertG12 (Arizona)
Posts: 160

Posted:

Quote:

Posted By MaryA1 on 04/11/2009 2:42 PM

Robert,

Funny you should mention the HOA attorney's opinion of the statute. A few months after the statute became law, our annual meeting took place. In the packet announcing the meeting was a notice from the board Pres. that nominations from the floor would be taken. I emailed our PM and told her that would be in violation of the new law. She responded telling me their attorney had advised them it was OK. I let it go because we never have any nominations from the floor anyhow. Well, fast forward one year to the next annual meeting. At the meeting the Pres announced their attorney had advised the board there could be NO nominations from the floor because that would be a violation of the state law. I didn't say "I told you so!" but had a good chuckle. I know sometimes it takes awhile to really digest the meaning of some of these laws. I like to think that's what happened with our attorney and perhaps yours, but of course we all know the attorneys don't always know what they're talking about.

I have been to several annual meetings. One PM said no floor nominations, then another says yes. Pick your choice.

Just to finish the story without getting too detailed. I raised the issue of write-in candidates before a recent election. There were 3 candidates on the ballot. There were 5 positions open. Everyone imagined that the 3 would get elected. I brought out the issue of no write-in candidates should be allowed. The lawyer spoke and said the law didn't apply because the law was just about proxy voting (which it does address). I also argued it wasn't fair to those voting as they would not know if they wanted to vote for the printed names or the write-ins. Also, someone could put down another person's name as a lark. I was overruled. No candidates were nominated from the floor. The voting was done and 5 people actually were elected. Two write-ins were put on the ballot and I know one got 1 vote and I think the other did too. One of the two was upset that their name was put on and refused to take the position. The other was me. I never asked to be elected, nor did I in anyway indicate I should be. No one can make up the antics that go on with an HOA!

A new reality show - "I Can't Believe I live in an HOA".

SusanW1 (Michigan)
Posts: 5,202

Posted:

I am not going to be convinced until I can see the law on the election PROCESS defined, i.e. "How to hold an election"

Until then, maybe the orginal poster can tell us what it says in his own bylaws under "Election of the Board.

SusanW1 (Michigan)
Posts: 5,202

Posted:

I Googled "HOA nominations from the floor arizona" and saw this in a Casa Requena, AZ newsletter:

“As stated in the past, our firm's opinion is that that floor nominations and write-ins are both appropriate
and legal, in Arizona and at Casa Requena. That is, there is nothing in either the state statutes - in the
Arizona Condominium Act or the Arizona Nonprofit Corporations Act - or in Casa Requena's Community
Documents that prohibits either floor nominations or write in-balloting.
“While there is, of course, the drawback that names added to a ballot at time of election are not
considered by those who have already voted, this is a generally accepted practice in corporate and
political history as considered by the legislature when enacting the statutes. The benefit of allowing
write-ins and floor nominations for homeowner and condominium associations is seen to be that such
associations have traditionally often had a dearth of viable candidates willing to serve in such volunteer
capacities, and anything that encourages members to run for election and to provide service to the
association is seen as a goal in the industry.
“Finally, there has been a respect for the political tradition involved in taking nominations and allowing
write-ins. That is, it allows and encourages enough like-minded members to proceed collaboratively as in
any political election, which is viewed as a demonstration of the will of the community being best
expressed by active participation, even if at the last moment.”

RobertG12 (Arizona)
Posts: 160

Posted:

Quote:

Posted By SusanW1 on 04/11/2009 4:16 PM
I am not going to be convinced until I can see the law on the election PROCESS defined, i.e. "How to hold an election"

Until then, maybe the orginal poster can tell us what it says in his own bylaws under "Election of the Board.

Below is the section you asked for. However, it is not relevant because the state law supersedes anything that is in the bylaws.

"Until the termination of the Declarant Control Period, the Declarant shall have the
right to appoint and remove the members of the Board. After the termination of the Declarant
Control Period, the directors shall be elected by the Members at the annual meeting of the
Members. For each election of directors, the Board shall either prescribe an opening and closing
date of a reasonable filing period in which each eligible person may declare their candidacy for
election to the Board by giving written notice thereof to the Secretary of the Association or
appoint a Nominating Committee to nominate candidates for election to the Board. The Board
may also establish such other rules and regulations as it deems appropriate with respect to the
nomination and election of directors. In each election of directors, the number of candidates
equal to the number of positions to be filled receiving the greatest number of votes shall be
deemed elected. Cumulative voting will not be permitted in the election of directors. "

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