UPCOMING BOARD ELECTION(IL)

Started by ReneeD • 46 replies • 6134 views

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ReneeD (Illinois)
Posts: 201

Posted:

There are two positions open; current boardmember not interested in seeking another term and the other boardmember simply did not submit profile in this year's election. Another position recently vacated and we are hopeful it will be filled by appointment until term expires next year. In the meantime, Board Elections are in August and, we received interest from only 1 homeowner however it has been determined this person is not owner of record. Because of this determination, we basically have no new candidates thus leaving a current Board consisting of two. Has anyone run into this problem where there is no homeowner interest? What happens next? What happens to current Board Members? Help! -Renee

MaryA1 (Arizona)
Posts: 7,043

Posted:

Renee,

Have you checke out the IL state laws, including the nonprofit corp statutes? In AZ our nonprofit statutes state that board members must remain in office until replaced. Of course, except through a court order I doubt you can "make" someone to stay on until a replacement is elected. However you can tell them of this requirement (IF it is a requirement of your state also!) and perhaps they will change their mind. One other option is for the remaining 2 board members to make appointments. Sometimes a person will agree to an appointment even though they did not want to run for a position. I have seen this happen many times. In the meantime the board members may want to send a letter to all members letting them know there have been no candidates and ask that they reconsider. Do your bylaws allow for a 3-member board?

BonnieE (Illinois)
Posts: 338

Posted:

Hi Renee,

We are condos that looks like townhomes, in IL and fall under the IL Condo Act.

Your described situation has been ours, especially since 2007 when we were last able to hold an election since we had achieved a quorum (over our 14 years, generally, no one is interested in attending meetings, much less serving on the Board). Since then (2008 - 2010), we have not achieved quorum, so no election. We currently have 5 Board members: 3 are originally elected but their 2 year terms expired a while back, and 2 are volunteers whom the Board appointed. We have not had a 5 member Board since 2007, and prior to that we were short of a full 5 for several years.

So, to answer your question:

“Because of this determination, we basically have no new candidates thus leaving a current Board consisting of two. Has anyone run into this problem where there is no homeowner interest? What happens next? What happens to current Board Members?”

(assuming your governing docs are similar to mine) – ultimately, the existing member(s) may continue until the next election; the existing members may appoint HOs who volunteer to fill the vacant Director slots, until the next election.
But, if you do achieve a quorum at your annual election HO meeting, I would suggest doing some networking prior to the start of the meeting (i.e., small talk with the HOs there to “sell” the idea of serving - I did this at the 2007 election when I had decided not to run again, and the result was a HO who self nominated from the floor), then once the meeting has started, explain the lack of candidates, the benefits of serving, then ask for nominations from the floor. During our early years when we did get HOs to attend, that was how we obtained candidates.

BTW - in the past, in order to obtain a quorum, we Directors would go door to door to “rally” the HOs to come out to the annual meeting, and also collected proxies. We usually achieved quorum due to the proxies collected. This took a huge amount of time and effort (in the winter!). After many years of doing this; the Board quit collecting proxies, and tried the warning letter that went out with the announcement/notice of the annual HO meeting/election - that if no one will come forward to serve on the Board, the HOA could go to receivership which would likely result in significant increases to the assessments (that was the 2007 annual meeting/election). Unfortunately this strategy only works once (& not when at least some existing Board members continue to serve on the Board).

Good luck!
Bonnie

KW3 (California)
Posts: 146

Posted:

Hi, Pardon me for adding a side question (related to board election anyway). In our HOA last year's annual meeting/board election (I was not there, but this is what the MC told me), the quorum (51%) was not reached and so there was no meeting (no minutes), no election. But, there WAS the scheduled board meeting right after the no-quorum annual meeting and the 3 BD at time mutually voted to elect themselves into offices (pres, vp, and secretary). I reckon that they just took that since there is no election, they would remain on board to serve the HOA. My question is this: Since there was nothing the annual meeting/election-related information discussed/recorded/mentioned in the after-board meeting's minutes and there was no minutes recorded for the 'no-quorum' annual meeting, I wonder something is wrong in this process. Can anyone suggest any problem(s) here? BTW, our board is a 5-member one. Before the election, there were 4 BD and one (pres) resigned. So the remaining 3 kept their board membership after the no-election annual meeting.

MaryA1 (Arizona)
Posts: 7,043

Posted:

KW3,

If there was no quorum a meeting could not be held. However, most bylaws state that if a quorum is not reached then the meeting should be rescheduled for another date. Apparently your board members decided not to do this and just remain in office.

If there were candidates, it would have been nice if the BOD had appointed 2 members to the board from the names on the slate. This would have resulted in some new blood on a 5-member board and would have dispelled any thoughts that these 3 board members just wanted to maintain control over the assn. Im sure you know what I mean!

In the minutes of the BOD meeting held after the annual meeting it should have been noted that the annual meeting did not take place and why and that the 3 board members would remain in office for another year. IMO, there should be a record of what happened.

KW3 (California)
Posts: 146

Posted:

Quote:

If there was no quorum a meeting could not be held. However, most bylaws state that if a quorum is not reached then the meeting should be rescheduled for another date. Apparently your board members decided not to do this and just remain in office.

Yes, the Bylaws state that if the quorum (51%) is not reached, the majority of the member present at the meeting can decide to move the meeting to a later date within 30 days AND change the quorum to no less than 25% (25% is very reachable if some effort made by the BOD). You're right about our BDs at the time. My question: If the quorum is not reached, can the chair of the meeting allow the members present make a motion of changing meeting date/quorum and pass it? In any way, if no quorum, can the chair even adjourn the meeting?

Quote:

In the minutes of the BOD meeting held after the annual meeting it should have been noted that the annual meeting did not take place and why and that the 3 board members would remain in office for another year. IMO, there should be a record of what happened.

No, there is no record about the annual meeting/election. That's what I thought wrong. But, what can I do about it?

RichardP13 (California)
Posts: 1,767

Posted:

KW3

Last November, we had a similar incident. Our Bylaws have a procedure that if quorum is not reached at the Annual Meeting, the Members present, either in person or by proxy may adjourn the meeting to a time not less than 5 days and no more than 30 days with a reduced quorum requirement of 25% (from our 50% plus 1). The Association's attorney canceled the Annual Meeting saying that the persons that cast a ballot but didn't show up at the meeting weren't given the opportunity themselves to adjourn the meeting. The Davis-Stirling Act Section 1363.03 (b) states that "each ballot received by the inspector of elections shall be treated as a member present at a meeting for the purposes of establishing a quorum". The intent of the legislators was to help, not hinder an Association in reaching their respective quorum requirements and having fair and open elections.

According to the folks at Robert's Rule of Order, only those that actually attend have the ability to vote to adjourn. For the record, the Annual Meeting is a Member Meeting, not a BOD meeting, thus it is supposed to be up to the Members present, not the BOD whether they want to adjourn the meeting to a new date.

KW3, I would read your Bylaws carefully to see what the actual procedures are for your Annual Elections. The minutes from the date of the Annual Meeting only show a BOD meeting that wasn't scheduled and no mention of an Annual Meeting, failed or otherwise.

I just finished the paperwork to file with the Superior Court challenging last year's election and to open the ballots from the election.

RichardP13 (California)
Posts: 1,767

Posted:

KW3,

We just finished re-writing our Bylaws and are in the 30 day window of getting them voted on. We kicked off the event last Saturday with a Luau for the adult residents. So we are half way to making our 51% approval.

We eliminated the requirement for quorum in voting for or removing director, amending the Bylaws and granting of exclusive use of common area. To remove a Director, amend the Bylaws or grant use of common area still requires an affirmative vote of a majority of 1/3 of the Voting Power of the Association. The CCR's have a provision in them for approving Annual and Special Assessments which we left alone. We also eliminated proxies and cumulative voting and all references to the developer(s).

By making these changes, people who want to run for a Board position will be assured to have the ballots opened and counted.

KW3 (California)
Posts: 146

Posted:

Mary,

Quote:

Last November, we had a similar incident. Our Bylaws have a procedure that if quorum is not reached at the Annual Meeting, the Members present, either in person or by proxy may adjourn the meeting to a time not less than 5 days and no more than 30 days with a reduced quorum requirement of 25% (from our 50% plus 1). The Association's attorney canceled the Annual Meeting saying that the persons that cast a ballot but didn't show up at the meeting weren't given the opportunity themselves to adjourn the meeting. The Davis-Stirling Act Section 1363.03 (b) states that "each ballot received by the inspector of elections shall be treated as a member present at a meeting for the purposes of establishing a quorum". The intent of the legislators was to help, not hinder an Association in reaching their respective quorum requirements and having fair and open elections.

According to the folks at Robert's Rule of Order, only those that actually attend have the ability to vote to adjourn...

Let me understand this: In your last year's annual meeting (who was the chair?), no formal quorum was reached and so the members present at the meeting voted to move the meeting to a later date and adjourn the meeting (members who sent in their votes but not attend the meeting did NOT vote to adjourn the meeting). Later, the re-opened annual meeting was canceled by the Association attorney(?) citing the members who sent in vote but not present at the meeting were not asked to vote for adjourning the meeting. So, no election was declared. My question: 1. who was the chair of the annual meeting? 2. what incited the association attorney's attention to this issue? 3. How many members (including Proxy they bring with) present at the meeting? and how many members sent in their votes but not present? (if the former out runs the latter, the meeting is legally adjourned. If the latter out runs the former, you may need to revise your ballot that would give members to send in their votes with approval or oppose for changing date/quorum if quorum is not reached.) IMO what stated in The Davis-Stirling Act Section 1363.03 (b) would outlast the Robert's Rule of Order.

Quote:

The minutes from the date of the Annual Meeting only show a BOD meeting that wasn't scheduled and no mention of an Annual Meeting, failed or otherwise.

There was no minutes recorded for the annual meeting (the MC said because there was no quorum). But there was the scheduled Board meeting taken right after the no-quorum annual meeting. The at-time 3 BDs discussed/conducted businesses as usual and elected themselves to the offices, etc., EXCEPT NO MENTION/RECORD OF THE ANNUAL MEETING/ELECTION. That was shown in the "Minutes of the board meeting". As I said before, I requested the Minutes of the annual meeting and the MC informed me there was no Minutes of annual meeting because no quorum/no election.

Quote:

I just finished the paperwork to file with the Superior Court challenging last year's election and to open the ballots from the election.

Let me understand this: you now ask the court to open the ballots from the last year's no-quorum annual meeting and make the election official and valid? I think you need to conduct a new meeting with lower quorum and a new election for the new quorum to make it valid and official? I am very interested in knowing the outcome of your case. Thanks

p.s., may I ask if you are one of your BOD? if yes, are you the president?

KW3 (California)
Posts: 146

Posted:

Richard,

Quote:

... We also eliminated proxies and cumulative voting...

Why? I thought proxies and cumulative voting are things for encouraging people to vote. (maybe with fairness issue and political agenda?)

RichardP13 (California)
Posts: 1,767

Posted:

KW3

The President of the Association is in charge of presiding over any Meeting of the Members if they so choose, otherwise a Member may preside over the proceedings. We never had the opportunity to have another meeting because the attorney who is not a members canceled the meeting, even she had no such authority to do so, only the President who presides over the meeting can do that. The attorney and their law firm's interpretation of Section 1363.03(b) of the Davis Stirling Act is wrong and it has affected other HOA's near us also. That is the reason why I am taking action in Superior Court. The main reason is to challenge their interpretation/opinion of the law. The other reason is to have the ballots opened on a one time exception due top the fact that the Association has not reached quorum in the past 6 years, thus never having ballots opened for that same period of time.

To make permanent changes to the Bylaws you need to either amend or restate them. That is what we just finished. Proxies were eliminated because with no quorum requirement they were no longer necessary, besides they tend to be misused by individuals and Boards. Cumulative voting was only necessary to help the developers in control of the Association while it was being built. Cumulative voting WILL ALWAYS guarantee that the develop stays in control of the BOD. Simple math.

No, I am not President of the Association, nor a member of the Board.

RichardP13 (California)
Posts: 1,767

Posted:

KW3

I am using this section of Corporation Code to take the election to Superior Court.

Corporations Code §7515. Court Order for a Meeting or Written Ballot.

(a) If for any reason it is impractical or unduly difficult for any corporation to call or conduct a meeting of its members, delegates or directors, or otherwise obtain their consent, in the manner prescribed by its articles or bylaws, or this part, then the superior court of the proper county, upon petition of a director, officer, delegate or member, may order that such a meeting be called or that a written ballot or other form of obtaining the vote of members, delegates or directors be authorized, in such a manner as the court finds fair and equitable under the circumstances.

(b) The court shall, in an order issued pursuant to this section, provide for a method of notice reasonably designed to give actual notice to all parties who would be entitled to notice of a meeting held pursuant to the articles, bylaws and this part, whether or not the method results in actual notice to every such person, or conforms to the notice requirements that would otherwise apply. In a proceeding under this section the court may determine who the members or directors are.

(c) The order issued pursuant to this section may dispense with any requirement relating to the holding of and voting at meetings or obtaining of votes, including any requirement as to quorums or as to the number or percentage of votes needed for approval, that would otherwise be imposed by the articles, bylaws, or this part.

(d) Wherever practical any order issued pursuant to this section shall limit the subject matter of the meetings or other forms of consent authorized to items, including amendments to the articles or bylaws, the resolution of which will or may enable the corporation to continue managing its affairs without further resort to this section; provided, however, that an order under this section may also authorize the obtaining of whatever votes and approvals are necessary for the dissolution, merger, sale of assets or reorganization of the corporation.

(e) Any meeting or other method of obtaining the vote of members, delegates or directors conducted pursuant to an order issued under this section, and which complies with all the provisions of such order, is for all purposes a valid meeting or vote, as the case may be, and shall have the same force and effect as if it complied with every requirement imposed by the articles, bylaws, and this part.

Read more: Corporations Code http://www.davis-stirling.com/Laws/DavisStirlingAct/CorporationsCode7515/tabid/1162/Default.aspx#ixzz0uBU2H800
from Davis-Stirling.com by Adams Kessler PLC

KW3 (California)
Posts: 146

Posted:

Hi Richard, (first let me apologize on mixing up your name with Mary in my previous post)

Quote:

... The attorney and their law firm's interpretation of Section 1363.03(b) of the Davis Stirling Act is wrong and it has affected other HOA's near us also...

I am curious about how did the attorney interpret the code wrong?

Quote:

...Cumulative voting was only necessary to help the developers in control of the Association while it was being built. Cumulative voting WILL ALWAYS guarantee that the develop stays in control of the BOD...

In our current HOA, the developer is long gone, but the cumulative voting is still being adopted according to the BYlaws. Can you still see this a potential harm to the general HOA members (owners)? (the cumulative voting for our HOA is like this: e.g., 3 BD vacancies for election with 5 candidates -- every member has 1 vote for each vacancy, so every member can give 3 votes in the following options: give 3 votes to any of the candidates, or give 2 votes to any candidate and 1 vote to another candidate, or give 1 vote each to any 3 candidates, or forfeit all/any of the 3 votes ... the candidates given the most votes win the election)

RichardP13 (California)
Posts: 1,767

Posted:

KW3,

Our Bylaws have a section that describes how to adjourn a meeting of Members (one that had achieved quorum) and also a section that deals with adjourning an Annual Meeting to a later date with a lower quorum requirement IF quorum is not reached. They chose to use the section to adjourn a meeting that was in progress (meaning quorum had been reached). Below are our two sections

Section 5.4 Adjourned Meetings and Notice Thereof. Any membership meeting, annual or special, whether or not a quorum is present, may be adjourned from time to time by the vote of a majority of the voting power present in person or represented by proxy, but in the absence of a quorum no other business may be transacted at any such meeting.

Section 5.7 Quorum. The presence in person or by proxy of a majority of the total voting power of the Association entitled to vote at any meeting shall constitute a quorum for the transaction of business. The Members present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough voting power to leave less than a quorum. In the event any meeting of Members cannot be held because a quorum is not present, the Members present, either in person or by proxy, may adjourn the meeting to a time not less than five (5) days nor more than thirty (30) days from the time of the original meeting date, at which meeting the quorum requirement shall be twenty-five percent (25%) of the total voting power of the Association; provided, however, if after adjournment a new date is fixed for the adjourned meeting, notice of the time and place of the adjourned meeting shall be given to the Members in the manner prescribed for regular meetings; provided further, that in the event the quorum requirement becomes twenty-five percent (25%) of the total voting power of the Association, then the only matters that may be voted upon at any meeting actually attended in person or by proxy by one-third (1/3) or less of the voting power are matters of which notice of the general nature of which was given in the notice of meeting.

In order to take action at a meeting (according to these two sections) you must be present in person to vote to adjourn. The ballot only counts for the sole purpose of helping an Association establish quorum.

As far as cumulative voting is concerned, if your Association had 100 units of which 50 were owned by the developer and 50 by homeowners, our documents gave the developer 3 votes per unit and homeowners 1 vote each. If you had an election for 3 BOD and 3 candidates and you wanted to keep control of the Board, as a developer you would cast 250 votes (5 X 50) for candidate one, 200 votes (4 X 50)for candidate two and the homeowners could cast all 150 votes (3 X 50) for candidate three (their candidate). In this case the developer would have two of the three board positions. The second year election would be for two positions. If three candidates were running the developer could get two candidate, but they would always be assured of at least one, thus control 3 of the 5 positions on a Board.

Could a small group within a HOA control a Board using cumulative voting the answer is yes (if they knew what they were doing) The Davis Stirling Act Section 1363.03 suggest that procedures be used modeled after California counties. No California county allows for cumulative voting in their elections. Thus we removed it.

KW3 (California)
Posts: 146

Posted:

Thank you for your sharing, Richard. Regarding cumulative voting, we are now without any developer or group with more voting power than every owner does. So the only worry will be the 'small group' in the HOA that may intent to control the Board by using cumulative voting.

I have another request for help: what is the formal, legitimate procedure (or process) of a HOA election? e.g., who can prepare/handle the proxy/ballot before/during/after the election? who can receive/handle the mail-in ballot? who can be the inspector of the election? what does he/she do? (is this personnel required?) who can open/count ballots? who can check/inspect proxies? etc. (All in all, what role and to what extent the MC can play in the election process? Can the MC play all above roles at election? or just some and which roles?)

RichardP13 (California)
Posts: 1,767

Posted:

KW3

Below is Section 1363.03 of the Davis Stirling Act which went into effect on July 1, 2006 and covers everything about California HOA elections. I have also attached a sample Elections Rules which your Association which should have on file for the Inspector of Election and generally prepared by the Association's legal firm.

Civil Code §1363.03. Election Procedures, Secret Ballots, Inspectors of Election.

(a) An association shall adopt rules, in accordance with the procedures prescribed by Article 4 (commencing with Section 1357.100) of Chapter 2, that do all of the following:

(1) Ensure that if any candidate or member advocating a point of view is provided access to association media, newsletters, or Internet Web sites during a campaign, for purposes that are reasonably related to that election, equal access shall be provided to all candidates and members advocating a point of view, including those not endorsed by the board, for purposes that are reasonably related to the election. The association shall not edit or redact any content from these communications, but may include a statement specifying that the candidate or member, and not the association, is responsible for that content.

(2) Ensure access to the common area meeting space, if any exists, during a campaign, at no cost, to all candidates, including those who are not incumbents, and to all members advocating a point of view, including those not endorsed by the board, for purposes reasonably related to the election.

(3) Specify the qualifications for candidates for the board of directors and any other elected position, and procedures for the nomination of candidates, consistent with the governing documents. A nomination or election procedure shall not be deemed reasonable if it disallows any member of the association from nominating himself or herself for election to the board of directors.

(4) Specify the qualifications for voting, 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.

(5) Specify a method of selecting one or three independent third parties as inspector, or inspectors, of election utilizing one of the following methods:

(A) Appointment of the inspector or inspectors by the board.

(B) Election of the inspector or inspectors by the members of the association.

(C) Any other method for selecting the inspector or inspectors.

(6) Allow the inspector, or inspectors, to appoint and oversee additional persons to verify signatures and to count and tabulate votes as the inspector or inspectors deem appropriate, provided that the persons are independent third parties.

(b) Notwithstanding any other law or provision of the governing documents, elections regarding assessments legally requiring a vote, election and removal of members of the association board of directors, amendments to the governing documents, or the grant of exclusive use of common area property pursuant to Section 1363.07 shall be held by secret ballot in accordance with the procedures set forth in this section. A quorum shall be required only if so stated in the governing documents of the association or other provisions of law. If a quorum is required by the governing documents, each ballot received by the inspector of elections shall be treated as a member present at a meeting for purposes of establishing a quorum. An association shall allow for cumulative voting using the secret ballot procedures provided in this section, if cumulative voting is provided for in the governing documents.

(c)

(1) The association shall select an independent third party or parties as an inspector of election. The number of inspectors of election shall be one or three.

(2) For the purposes of this section, an independent third party includes, but is not limited to, a volunteer poll worker with the county registrar of voters, a licensee of the California Board of Accountancy, or a notary public. An independent third party may be a member of the association, but may not be a member of the board of directors or a candidate for the board of directors or related to a member of the board of directors or a candidate for the board of directors. An independent third party may not be a person, business entity, or subdivision of a business entity who is currently employed or under contract to the association for any compensable services unless expressly authorized by rules of the association adopted pursuant to paragraph (5) of subdivision (a).

(3) The inspector or inspectors of election shall do all of the following:

(A) Determine the number of memberships entitled to vote and the voting power of each.

(B) Determine the authenticity, validity, and effect of proxies, if any.

(C) Receive ballots.

(D) Hear and determine all challenges and questions in any way arising out of or in connection with the right to vote.

(E) Count and tabulate all votes.

(F) Determine when the polls shall close, consistent with the governing documents.

(G) Determine the tabulated results of the election.

(H) Perform any acts as may be proper to conduct the election with fairness to all members in accordance with this section, the Corporations Code, and all applicable rules of the association regarding the conduct of the election that are not in conflict with this section.

(4) An inspector of election shall perform his or her duties impartially, in good faith, to the best of his or her ability, and as expeditiously as is practical. If there are three inspectors of election, the decision or act of a majority shall be effective in all respects as the decision or act of all. Any report made by the inspector or inspectors of election is prima facie evidence of the facts stated in the report.

(d)

(1) For purposes of this section, the following definitions shall apply:

(A) "Proxy" means a written authorization signed by a member or the authorized representative of the member that gives another member or members the power to vote on behalf of that member.

(B) "Signed" means the placing of the member's name on the proxy (whether by manual signature, typewriting, telegraphic transmission, or otherwise) by the member or authorized representative of the member.

(2) Proxies shall not be construed or used in lieu of a ballot. An association may use proxies if permitted or required by the bylaws of the association and if those proxies meet the requirements of this article, other laws, and the association's governing documents, but the association shall not be required to prepare or distribute proxies pursuant to this section.

(3) Any instruction given in a proxy issued for an election that directs the manner in which the proxyholder is to cast the vote shall be set forth on a separate page of the proxy that can be detached and given to the proxyholder to retain. The proxyholder shall cast the member's vote by secret ballot. The proxy may be revoked by the member prior to the receipt of the ballot by the inspector of elections as described in Section 7613 of the Corporations Code.

(e) Ballots and two preaddressed envelopes with instructions on how to return ballots shall be mailed by first-class mail or delivered by the association to every member not less than 30 days prior to the deadline for voting. In order to preserve confidentiality, a voter may not be identified by name, address, or lot, parcel, or unit number on the ballot. The association shall use as a model those procedures used by California counties for ensuring confidentiality of voter absentee ballots, including all of the following:

(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 his or her name, indicate his or her name, and indicate the address or separate interest identifier that entitles him or her to vote.

(2) The second envelope is addressed to the inspector or inspectors of election, who will be tallying the votes. The envelope may be mailed or delivered by hand to a location specified by the inspector or inspectors of election. The member may request a receipt for delivery.

(f) All votes shall be counted and tabulated by the inspector or inspectors of election or his or her designee in public at a properly noticed open meeting of the board of directors or members. Any candidate or other member of the association may witness the counting and tabulation of the votes. No person, including a member of the association or an employee of the management company, shall open or otherwise review any ballot prior to the time and place at which the ballots are counted and tabulated. The inspector of election, or his or her designee, may verify the member's information and signature on the outer envelope prior to the meeting at which ballots are tabulated. Once a secret ballot is received by the inspector of elections, it shall be irrevocable.

(g) The tabulated results of the election shall be promptly reported to the board of directors of the association and shall be recorded in the minutes of the next meeting of the board of directors and shall be available for review by members of the association. Within 15 days of the election, the board shall publicize the tabulated results of the election in a communication directed to all members.

(h) The sealed ballots at all times shall be in the custody of the inspector or inspectors of election or at a location designated by the inspector or inspectors until after the tabulation of the vote, and until the time allowed by Section 7527 of the Corporations Code for challenging the election has expired, at which time custody shall be transferred to the association. If there is a recount or other challenge to the election process, the inspector or inspectors of election shall, upon written request, make the ballots available for inspection and review by an association member or his or her authorized representative. Any recount shall be conducted in a manner that preserves the confidentiality of the vote.

(i) After the transfer of the ballots to the association, the ballots shall be stored by the association in a secure place for no less than one year after the date of the election.

(j) Notwithstanding any other provision of 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.

(k) Except for the meeting to count the votes required in subdivision (f), an election may be conducted entirely by mail unless otherwise specified in the governing documents.

(l) The provisions of this section apply to both incorporated and unincorporated associations, notwithstanding any contrary provision of the governing documents.

(m) The procedures set forth in this section shall apply to votes cast directly by the membership, but do not apply to votes cast by delegates or other elected representatives.

(n) In the event of a conflict between this section 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 section shall prevail.

(o) The amendments made to this section by the act adding this subdivision shall become operative on July 1, 2006.

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KW3 (California)
Posts: 146

Posted:

Richard,

Thanks for the valuable info. After first glance at the Election Rules sample, I found a critical word-missing: in 3.1.5, the word "NOT" should be added in between 'is' and 'currently' of the statement (otherwise the MC can be an inspector of election?)

Is setting an Election Rules aside the Bylaws legitimate and valid for following it by the HOA and the inspector of election? I think so, but better have clarification. Also my thought on selecting the inspector(s) of election goes to appointing an(or 3) owner(s) (i.e., HOA members) who meet the 3.1.4 requirement as a common practice of HOA. Am I out of line? Let me know.

KW3 (California)
Posts: 146

Posted:

Hi Richard,

If I may ask for help again, the following questions regarding the Election Rules sample you provided need clarification:

* 2.3 How many nominees an owner can nominate (e.g., for 3 vacancies)? Is there a sample of nomination form/letter?

* 2.4 How, who, and when is to contact the nominated for their consents?

* 2.5 How, in what time line, to obtain the confirmation of willingness to run for election from the nominated?

* 3.1 Is one (1) inspector of election proper and sufficient in common practice?

* 4.3 completely lost in this section. Please explain. Quote: "Owners may return their secret ballot by mail, hand deliver it to the
meeting or complete the ballot at the meeting; provided, only those ballots which are delivered to the inspectors of election prior to the polls closing shall be counted."

* 8.1 Shouldn't the election result be recorded in the minutes of the "annual members meeting" and then noted in the minutes of the following board meeting?

Thanks for help.

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By KW3 on 07/21/2010 12:19 AM
Richard,

Thanks for the valuable info. After first glance at the Election Rules sample, I found a critical word-missing: in 3.1.5, the word "NOT" should be added in between 'is' and 'currently' of the statement (otherwise the MC can be an inspector of election?)

Is setting an Election Rules aside the Bylaws legitimate and valid for following it by the HOA and the inspector of election? I think so, but better have clarification. Also my thought on selecting the inspector(s) of election goes to appointing an(or 3) owner(s) (i.e., HOA members) who meet the 3.1.4 requirement as a common practice of HOA. Am I out of line? Let me know.

The MC in many cases is one of the inspectors or election, so the wording is correct.

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By KW3 on 07/21/2010 3:16 PM
Hi Richard,

If I may ask for help again, the following questions regarding the Election Rules sample you provided need clarification:

* 2.3 How many nominees an owner can nominate (e.g., for 3 vacancies)? Is there a sample of nomination form/letter?

* 2.4 How, who, and when is to contact the nominated for their consents?

* 2.5 How, in what time line, to obtain the confirmation of willingness to run for election from the nominated?

* 3.1 Is one (1) inspector of election proper and sufficient in common practice?

* 4.3 completely lost in this section. Please explain. Quote: "Owners may return their secret ballot by mail, hand deliver it to the
meeting or complete the ballot at the meeting; provided, only those ballots which are delivered to the inspectors of election prior to the polls closing shall be counted."

* 8.1 Shouldn't the election result be recorded in the minutes of the "annual members meeting" and then noted in the minutes of the following board meeting?

Thanks for help.

2.3--They can nominate as many as they wish, but one, they must be willing to serve if elected and they must meet the qualifications as set forth in your Bylaws, if any.

2.4--Either the Nominating Committee if there is one or the MC will contact each nominated candidate to make sure they are interested and are qualified.

2.5--Must be done prior to the 30 day window for the election itself. Generally, this is done within the first 15 days after the nominating forms have been sent out.

3.1--Best to have 2 or 3 if possible

4.3--This procedure follows how County elections are handled. If any ballot is received AFTER the poll closes, then it will not be counted.

8.1--Generally, there is no Board meeting held at the Annual meeting, only an organizational meeting for the new Board to elect officers from the newly elected Board members. The results will be included in the minutes of the new Board Meeting, but it is required by law to inform the membership by mail of the the results of the election.

KW3 (California)
Posts: 146

Posted:

Quote:

The MC in many cases is one of the inspectors or election, so the wording is correct.

But in Civil Code 1363.03 (c) (2), it states: An independent third party may "not" be a person, business entity, or subdivision of a business entity who is currently employed or under contract to the association for any compensable services unless ...

How could the MC an "independent third party" while it involves financial interest in HOA's operating...?

KW3 (California)
Posts: 146

Posted:

Quote:

2.3--They can nominate as many as they wish, but one, they must be willing to serve if elected and they must meet the qualifications as set forth in your Bylaws, if any.

Ok, but can you set a limit according to the vacancies for election in the nomination form?

Quote:

2.4--Either the Nominating Committee if there is one or the MC will contact each nominated candidate to make sure they are interested and are qualified.

I believe we can put the consent statement in the nomination form with signature space for saving time.

Quote:

2.5--Must be done prior to the 30 day window for the election itself. Generally, this is done within the first 15 days after the nominating forms have been sent out.

Same as 2.4

Quote:

3.1--Best to have 2 or 3 if possible

I don't think 2 is allowed in the sense of majority issue for making any conclusion.

Quote:

4.3--This procedure follows how County elections are handled. If any ballot is received AFTER the poll closes, then it will not be counted.

Understood

Quote:

8.1--Generally, there is no Board meeting held at the Annual meeting, only an organizational meeting for the new Board to elect officers from the newly elected Board members. The results will be included in the minutes of the new Board Meeting, but it is required by law to inform the membership by mail of the the results of the election.

Ok, but our HOA sets a scheduled quarterly Board meeting right after the annual meeting and the two meetings have their own minutes recorded (if the respective quorum is reached).

RichardP13 (California)
Posts: 1,767

Posted:

I use davis-stirling.com, which is put together by a law firm in Los Angeles. Quite frankly, I don't think there is a better web site in the country that deals with all issues HOA. It is well indexed and easy to search for any question you or your Board may have. Besides their interpretations and opinions, they have the complete, unedited versions of the Davis-Stirling Act, Corporation Code and Case Law.The best thing is it's FREE!!

2.3--If you have three position open you may have 12 people running, it is only limited by the number of individuals interested. You may have one run and three positions open.

2.4--Consent would be implied if the holder of the nominating form was the candidate, but what happens if you nominate three of your neighbors and didn't tell them.

3.1--Must be one or three..Section 1363.03(5)
Specify a method of selecting one or three independent third parties as inspector, or inspectors, of election utilizing one of the following methods

8.1--The Annual Meeting is a Member meeting, not a Board meeting, so the only thing that should be discussed after the election has been completed, is to adjourn to an organization meeting, with members present, to elect officers.

Here is a sample agenda for an Annual Meeting:

MEETING AGENDA
Annual Meeting of the Members
1. Registration. Registration starts at 6:00 p.m.

2. Announcement of Quorum and Call to Order. Once quorum has been achieved the meeting will be called to order by the President.

3. Approval of Minutes. Motion to waive the reading of prior year's minutes and approval of the minutes. Vote to approve the minutes.

4. Approval of IRS Resolution. Any excess income for the current year shall be applied to the next fiscal year as provided by IRS Revenue Ruling 70-604.

5. President's Report.

6. Nominations. Nominations from the floor .

7. Nominee Introductions. Introduce nominees and allow statements by nominees.

8. Voting. Motion to close voting and begin counting ballots.

9. Presentation of Awards.

10. Open Forum. Members in good standing are free to speak on any matter of interest to the community. Members must observe rules of decorum and not disrupt the meeting. Each person will have three minutes to speak. If they are in the middle of a sentence when time is called, they may finish their thought before sitting down. The time guidelines ensure that others will have an opportunity to speak. Speakers may not allot their time to someone else.

11. Announcement of Election Results.

12. Adjournment.

13. Organizational Meeting of the Board. New and continuing Board Members will meet after the meeting to elect officers and establish meeting dates and times.

QUESTION: Because of the new secret balloting requirements, we can't get enough people to the annual meeting to conduct routine business, such as approving the minutes of the prior annual meeting. Can we skip the approval of minutes?

ANSWER: Normally, approval of the prior year's minutes is an agenda item at the annual meeting. The secretary will often ask for a motion to waive the reading of the minutes and then ask for a motion to approve the minutes. The membership normally approves with a voice vote.

Board Approval. However, it is permissible to leave the approval to the board of directors. Minutes that do not come up for review within a quarterly time interval, may be approved by the board. (Robert's Rules, 10th Edition, §48.) Allowing the board to approve minutes has the added benefit of posting meeting minutes within thirty days of the meeting, rather than waiting a year for the next annual meeting.

KW3 (California)
Posts: 146

Posted:

Thanks for the info, Richard.

ReneeD (Illinois)
Posts: 201

Posted:

Bonnie, thanks for responding. This year's election process is nerve-wrecking and, every day seems like more unfolds. Two positions open and a vacancy for third BOD member elected last year who never attended any meetings which we will try to fill at this election, hopefully. However, the communication sent out by the CAM only said filling two current positions along with proxy/ballots showing one BOD member's name and another homeowner desiring to be elected. At last BOD meeting she informed BOD Prz and me that the (new) homeowner does not show up as owner of record. I asked her if she informed him that is required--no response but, just yesterday she informed me that she sent a new mailing to homeowners removing both names on proxy ballots. I believe her strategy is the BOD will seek appointments as you suggest in your post. Since this is all new to me and the receivership aspect, where can I learn more about this so I am able to explain what impact this would have to our association if it were to happen? Also, a homeowner mentioned to me that if there is no interest from others in this community to run for the Board, what would it take to disband the association. Sounds like vicious but what are the ramifications to that? -Renee

BonnieE (Illinois)
Posts: 338

Posted:

Hi Renee,

My understanding is that if there is no one to run the HOA (a BOD), the State/Court may appoint someone to run the HOA – this is called a receivership. I do not know the specific steps of how this would occur – you might ask your property manager.

It is my understanding that such a person is likely paid, which would mean an assessment increase to cover this. In addition, it is my understanding that the HOs would not likely have any input into how the HOA is being managed by the receiver.

From Wikipedia:

Receivership
In law, receivership is the situation in which an institution or enterprise is being held by a receiver, a person "placed in the custodial responsibility for the property of others, including tangible and intangible assets and rights."[1] Various types of receiver appointments exist:[1]
a receiver appointed by a (government) regulator pursuant to a statute;
a privately-appointed receiver; and
a court-appointed receiver.[1]
The receiver's powers "flow from the document(s) underlying his appointment – a statute, financing agreement, or court order.

As for disbanding the HOA – if there is common property, it is my understanding then the HOA cannot be disbanded. Could it be sold? IMO, doubtful – plus disbanding the HOA and/or selling common property would likely mean amending your gov docs (Declaration of Covenants), which would take some percentage of the HOs agreeing (2/3s? more? per your goc docs). Your attorney should be able to explain this.

FYI - here is an article from KSN Law – was in the Daily Herald – note final bullet:
http://www.ksnlaw.com/?t=11&la=1156&format=xml&p=1672

Filling Board Vacancies Can Be a Challenge
December 1998

What if your association held a board meeting and nobody came...? I am not referring to when the board meets without any owners present. In many instances, that can be looked upon as a good thing! People usually show up to complain. If the property is painted and everyone is paying their assessments on time, most boards usually meet in virtual solitude.

What I am referring to in the preceding paragraph is when an association cannot get anyone to run for the board. This too often occurs in older properties where things are going along well, or the reverse, where things have been awful! Brand new properties or middle-range properties usually have no problem filling the board.

What can an association do when truly no one wants to volunteer? This dilemma can be addressed by a number of public relations tactics or in the worst case scenario, fear.

Usually board vacancies reach the crisis stage when there are only one or two directors left after resignations, no-shows, transfers, etc. The "survivors" start pounding the pavement only to have multiple doors slammed in their face. The remaining directors need help just to share the workload. There are not enough remaining directors to constitute a quorum...etc.

In a previous column, I addressed the issue of paying directors, which is probably not a solution. A token check each month is usually not an incentive to get reluctant volunteers to step forward. The concerned owners who have recruitment problems need to use the following tactics to convince "all good men (and women) to come to the aid" of their association.

• First, identify the sensible owners with business or professional credentials to focus your efforts.

• Next, find concerned people who have time and care about the property, but may have been too shy to step forward.

• Enlist a committee to walk the property to sell people on serving on the board.

• Promise they only have to serve for two years (or one if you are really desperate).

• Give the manager the authority to perform its duties under the contract terms (instead of taking away that authority).

• Schedule board meetings quarterly (which is the minimum statutory requirement).

• Limit board meetings to 1-1½ hours.

• Enlist people to serve on a committee so that the board is not saddled with all of the work.

• Rotate the chairmanship for running meetings. Even though the president is the chief executive officer, that role can be limited to signing checks and documents. A chairman pro-tem or parliamentarian can run a meeting...or, everyone can take turns. It is incredible how many people with good intentions serve as president, but lack the personality or demeanor to run a meeting in front of a large group of people.

• Eliminate "beef" sessions regarding maintenance problems, complaints, etc. A homeowners’ portion of meetings is not required. Owners are only permitted to attend. Complaints should be put in writing and sent to the manager. If owners cannot cooperate, an association may never get people to volunteer for the board.

• Lastly, if all else fails, advise the owners that if the board cannot be filled so at least three members are serving (the legal minimum), then a receiver will have to be appointed by the circuit court to administer the property. The fact that an attorney, accountant or realtor of the judge’s choosing could be appointed to administer the property should be enough of an incentive to have people stand in line to serve on the board.

The most important thing to keep in mind is, if the board experience itself is not unpleasant (which requires owner cooperation), an association will never have a problem getting enough volunteers.

Good luck and keep me posted on what happens.
Bonnie

ReneeD (Illinois)
Posts: 201

Posted:

Responses to this post simply amazing.

Bonnie, drawn to you because we both are in Illinois---thank you.

Anyway, our Decs/ByLaws are so cryptic and old...and find myself reading and rereading to even understand what is being said and when I do then it's my interpretation. You mentioned that the existing members may continue until the next election and, the existing members may appoint HOs who volunteer to fill the vacant Director slots until the next election.

How is that any different if our CAM has communicated that homeowners may write in the name of someone you know who will be nominated from the floor. I would have phrased it differently but those are her exact words. What am I missing here?

I also tried doing a global search and nothing has come up close to what you suggest. Does that mean ours are silent and we need to defer to Il Condo Act? -Renee

ReneeD (Illinois)
Posts: 201

Posted:

Hi, Bonnie. I did have another curiousity question I failed to included....If a board member's term expire, should that current board member have to submit a (new)candidate profile for that election? Thanks! -Renee

BonnieE (Illinois)
Posts: 338

Posted:

Hi Renee,

Out of curiosity - how old are your governing documents? Ours go back to 1993(?) although we updated them following developer turnover to basically change the words referring to the developer, and to make them current with the laws.

You said:
“You mentioned that the existing members may continue until the next election and, the existing members may appoint HOs who volunteer to fill the vacant Director slots until the next election.”

Yes – that is how our current Board is currently comprised since we have not had an election (due to lack of quorum) for several years. We have done this many times. See para. 13 below from IL Condo Act re appointments.

You asked:
(1) “How is that any different if our CAM has communicated that homeowners may write in the name of someone you know who will be nominated from the floor. I would have phrased it differently but those are her exact words. What am I missing here?”

A: Do you mean that a HO may write in a HO as a nominee on the proxy form and mail it in prior to the election meeting (or provide to another HO to take to the election meeting)? If yes, para. 18 below appears to address that.

(2) “I also tried doing a global search and nothing has come up close to what you suggest. Does that mean ours are silent and we need to defer to Il Condo Act?”

A: Yes, that is my understanding. Did you check your By-Laws? The IL condo act refers to them for elections.

(3) “If a board member's term expire, should that current board member have to submit a (new)candidate profile for that election.”

A: If I understand your question – if a board member’s term is ending and wants to run again – then the answer would be they could – although they could submit the same one they used before. I’m not sure that a candidate profile is required, only that it can be provided – see para. 17 below.

In our elections I do not recall any existing board members having submitted a candidate profile when they planned to run again. Their names were simply included as candidates on the proxy form sent to the homeowners. As for other nominees – few have done so.

But, at the election meeting, each candidate is given a few minutes to introduce themselves and state why they are running, why the HOs should vote for them.

Hope this helps - Bonnie

From the IL Condo Act:
http://www.ksnlaw.com/E02E82/assets/files/Documents/Illinois%20Condominium%20Property%20Act.pdf

from: Sec. 18. CONTENTS OF BYLAWS.

Pg. 19:
(13) the method of filling vacancies on the board which shall include authority for the remaining members of the board to fill the vacancy by two-thirds vote until the next annual meeting of unit owners or for a period terminating no later than 30 days following the filing of a petition signed by unit owners holding 20% of the votes of the association requesting a meeting of the unit owners to fill the vacancy for the balance of the term, and that a meeting of the unit owners shall be called for purposes of filling a vacancy on the board no later than 30 days following the filing of a petition signed by unit owners holding 20% of the votes of the association requesting such a meeting, and the method of filling vacancies among the officers that shall include the authority for the members of the board to fill the vacancy for the unexpired portion of the term;

(17) that the board of managers may disseminate to unit owners biographical and
background information about candidates for election to the board if (i) reasonable efforts to identify all candidates are made and all candidates are given an opportunity to include biographical and background information in the information to be disseminated; and (ii) the board does not express a preference in favor of any candidate;

(18) any proxy distributed for board elections by the board of managers gives unit owners the opportunity to designate any person as the proxy holder, and gives the unit owner the opportunity to express a preference for any of the known candidates for the board or to write in a name;

KW3 (California)
Posts: 146

Posted:

Richard,

Quote:

Posted By RichardP13 on 07/20/2010 10:57 PM
... I have also attached a sample Elections Rules which your Association which should have on file for the Inspector of Election and ...

Could you advise where or a link that we have access to the similar sample forms or templates for HOAs use? Thanks

RichardP13 (California)
Posts: 1,767

Posted:

KW#

What type of forms are you looking for?

KW3 (California)
Posts: 146

Posted:

Richard,

For example, the notice letter to owners for a review of the election rules, the letter to owners for nominating candidates, candidate nomination form, Notice of annual meeting & election, ballot, and so forth. Thanks

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By KW3 on 08/03/2010 5:26 PM
Richard,

For example, the notice letter to owners for a review of the election rules, the letter to owners for nominating candidates, candidate nomination form, Notice of annual meeting & election, ballot, and so forth. Thanks

KW3,

Send me an email at [email protected] and I will forward what I have that way.

KW3 (California)
Posts: 146

Posted:

Here is another question related to BD election: As the election rules in compliance with state Law and bylaws require that the association (the Board) shall, after nominations are in, determine the nominees as qualified candidates to be named in the ballot and shall select an inspector of election to collect and handle returned ballots from whence on. What is (are) required on the board to implement these actions? Must be done by a formal open board meeting (must be announced to owners prior to the meeting)? or Can it be done by the president with informal discussion and consent from all other BDs without a meeting?

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By KW3 on 08/04/2010 12:38 PM
Here is another question related to BD election: As the election rules in compliance with state Law and bylaws require that the association (the Board) shall, after nominations are in, determine the nominees as qualified candidates to be named in the ballot and shall select an inspector of election to collect and handle returned ballots from whence on. What is (are) required on the board to implement these actions? Must be done by a formal open board meeting (must be announced to owners prior to the meeting)? or Can it be done by the president with informal discussion and consent from all other BDs without a meeting?

I can speak about our Association. Our BOD pretty much does nothing as it relates to elections. It is all handled by the PM. The PM will (should) follow the Election Rules the Association should have in place as required by 1363.03 of Civil Code.

We have an election going on right now. Our Association is voting to approve a new set of Bylaws. We have 3 Inspector of Elections (two that were on the committee that re-wrote the Bylaws and the PM). The ballots were mailed out July 19th with instructions to mail the "secret ballots" back to the management company in care of Inspector of Elections. We have a Special Meeting scheduled for August 19 at which time if we have 162 ballots retuirned by 7:45 pm, the Inspector of Elections will validate the ballots and if quorum is satified, then open and tabulate the results.

Our Board does pretty much nothing, thank god!!

KW3 (California)
Posts: 146

Posted:

Richard,

Quote:

... We have 3 Inspector of Elections (two that were on the committee that re-wrote the Bylaws and the PM).

By Whom & how the 3 inspectors were appointed or selected? by the board in a board meeting? or specified in the gov doc/election rules? or by "verbal request" from the board? I know your HOA is operating smoothly right now, but mine is a mess and I want to clean it up for the right way it should operate.

KW3 (California)
Posts: 146

Posted:

Richard,

Quote:

... We have 3 Inspector of Elections (two that were on the committee that re-wrote the Bylaws and the PM).

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By KW3 on 08/04/2010 3:07 PM
Richard,

... We have 3 Inspector of Elections (two that were on the committee that re-wrote the Bylaws and the PM).

They were appointed by the Board. Motion was made, seconded and passed.

KW3 (California)
Posts: 146

Posted:

Quote:

They were appointed by the Board. Motion was made, seconded and passed.

So the inspector is to be appointed or selected by the board "in a meeting".

RichardP13 (California)
Posts: 1,767

Posted:

Yes. That is the proper way to do it, but it's not always done that way. At last November's Annual Meeting they "selected" the Inspectors in secret, in Executive Session and never announced to the members.

KW3 (California)
Posts: 146

Posted:

Quote:

...At last November's Annual Meeting they "selected" the Inspectors in secret, in Executive Session and never announced to the members.

Were the names of the inspectors not stated in the ballot? The executive session was not open and announced to the members, but the appointed inspectors were made known to the members. Right? Since the executive session is a close board meeting without record (minutes) and deemed confidential, is any of its decision legally bound to any one in the meeting? or to the board in general? I feel it very questionable to take an executive session except in emergency or timely matter.

A funny, yet serious question: Did anyone (HOA member or BD) ever go through such an experience: as you personally ask to meet and talk with the board president for the business related to the Association, it then takes place with the president holding a (voice) recorder for the conversation. What does this kind of setting constitute anything (legal or non-legal)? What purpose of this setting could be? Is this a normal setting most HOAs would practice? What's the possible implication of this setting?

RichardP13 (California)
Posts: 1,767

Posted:

KW3,

The names of the Inspectors don't need to go onto the ballot. According to Section 1363.05 (Open Meeting Act) clearly defind what can be discussed behind closed doors, but it doesn't stop BOD's and PM's from abusing the law.

With over 300,000 HOA's and more than 1.5 million board members you are bound to have problems especially when no one is watching or regulating the hen house. Ultimate responsibilty has to lie with the Board, evvn if they are just volunteers.

KW3 (California)
Posts: 146

Posted:

Richard,

Ok I was wrong that executive session has no record. According to 1363.05 that:
(c) Any matter discussed in executive session shall be generally noted in the minutes of the immediately following meeting that is open to the entire membership.

So it's not confidential in the HOA case.

RichardP13 (California)
Posts: 1,767

Posted:

What it says is that what is discussed in general term, not specific terms, shall be noted in the minutes. You can say you are placing liens on three properties with account numbers so and so, but you can not disclose to the general membership the name or address of the party or parties involved.

KW3 (California)
Posts: 146

Posted:

Richard,

Quote:

What it says is that what is discussed in general term, not specific terms, shall be noted in the minutes...

What record, in general term, would be noted in your HOA minutes regarding the executive session of appointing inspectors?

ReneeD (Illinois)
Posts: 201

Posted:

Hi Bonnie,

Well, 2010 association elections are over for now. We met quorum; proxies and ballots tallied and managed to fill 2 open positions. BOD sought nominations from the floor to fill vacancy for remaining term of our 5th board member. We did get off to a rocky start because our CAM and PRZ challenged proxies from a homeowner whom they said was not on title/owner of record. In addition, they wanted to void all the proxies he had collected from homeowners voting for him; homeowner stood his ground on 2 counts. Cliff Notes version---he said he had proof being on title was concerned and, his wife also submitted a letter designating him as a Voting Member for their unit. When he had the opportunity to introduce himself he explained how much more difficult it was for him to gain homeowner's support and vote because of our CAM's miscommunication of ownership and removing him from the proxy/ballot from the 2nd letter mailed after the July BOD meeting. He also found a loophole in our Decs essentially proving he still was an eligible candidate for the Board. Basically the wording in a section of our Decs reads '...the Board shall consist of 5 Board members, each of whom shall be an owner or voting member.”

Also, going back to submitting candidate profiles for elections. While I understand your explanation, I am looking at it with the expectation of homeowners wanting to know that person's reasons for running and not for personal reasons; also it comes across as discriminating that we ask homeowners to submit profiles but not board members regardless if it is new/recycled reasons.

On a separate note you asked how old are our governing documents---ours go back to 1986. What exactly is the process is involved updating/correcting these document? How difficult/painful is that process and, how long did it take you to get that done? Thanks. -Renee

BonnieE (Illinois)
Posts: 338

Posted:

Hi Renee,

Congrats on meeting quorum and holding a successful election, filling all open seats! Wishing your new BOD the best as they go forward.

Re the HO designated as voting member by his wife – our docs state this can/should be done. There is a section in our docs (By-Laws) titled “voting members” which addresses who may vote when there are multiple owners for a dwelling unit. Apparently he is one of those rare HOs who actually have read the docs – he should (hopefully) make for a good Board member.

RE the wording in your docs re qualifications to be on the Board – that is same as our wording. See the IL Condo Act. IMO, this is not a loophole.

You said:
“…going back to submitting candidate profiles for elections. While I understand your explanation, I am looking at it with the expectation of homeowners wanting to know that person's reasons for running and not for personal reasons; also it comes across as discriminating that we ask homeowners to submit profiles but not board members regardless if it is new/recycled reasons.”

I was referencing the IL Condo Act, Section 18. My understanding is that profiles are not required, but candidates may submit them to be disseminated to the HOs.

IMO, profiles could be requested for those Board members who are running for re-election; actually, I think it is a good idea. In our case, I do not recall any of our BODs who were running again having submitted a profile (I’ll have to suggest this for our next election). In addition, at the election meeting, we allow each candidate (new and those running again) to give a brief intro and why the HOs should vote for them.

You said:
“On a separate note you asked how old are our governing documents---ours go back to 1986. What exactly is the process is involved updating/correcting these document? How difficult/painful is that process and, how long did it take you to get that done?”

We have updated our governing docs once – when the turnover took place in the mid 1990s. Our docs were also updated to comply with some other new/updated laws since we were updating them anyway. At the time, since there were no controversial changes being made, it went smoothly – changes included removing/changing references from developer to the owners, removing developers rights, etc. The attorney made the changes, providing a marked up version for Board review (I highly recommend keeping the final approved/voted on marked up version for future reference. A clean copy will be produced and filed – but I have found the marked up version to be useful). As I recall this went to the HOs for review and comment, a Board meeting was held, etc. It was fairly easy, but as I said, there was nothing controversial being changed. Plan for the legal fee in the next budget - as I recommend that an attorney do this.

I recall reading other posts in which opinions were expressed that governing docs do not need to be updated to state the same language as new applicable laws because the new laws would apply regardless of what the gov docs state (they trump the gov docs - legal order of hierarchy) – as I understand the posters to have stated.

I suggest that you start a new thread re updating governing docs as this is a new topic. Why are you considering updating them? I need to go back and read the IL condo act. I know that for some (or all?) changes a vote of the membership is (may?) be required.

Are you a condominium? If not, or unsure, see Common Interest Community Association Act topic I recently posted.

Bonnie

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