Homeowners Associations - Election Law
Election of Directors, Voting Regarding Assessments, Governing Documents
The success of condominiums or community Associations depends in large part in the manner in which the Association conforms and complies with the codes and laws that govern them. The State Legislature adopted the "Election Procedure" laws (SB-61) in 2006 (amended several times since); the laws have been recorded in the California Civil Code and include Sections 5100 thru 5145 of the Davis Sterling Act.
The purpose of these new election laws is to provide election procedures that will insure and protect the integrity of the elections by adopting and implementing specific election processes and procedures which election shall, by mandate, be held by secret ballot.
The following "Election Policy and Procedures" and a means to enforce them, will assure the community Association of a professional, fair and unbiased election. Your Board of Directors has adopted the following rules and regulations in accordance with the California Civil Code known as the "Davis Sterling Act to help assure the enjoyment and tranquility for all persons living in the community. These codes, in certain areas, may supersede the Association's CC&Rs and Bylaws and are equally enforceable under the law. Voting is restricted to owners only unless provided by proxy as explained herein.
Pursuant to the California Civil Code, Sections 5100 thru 5145 the following rules and procedures shall apply for election of Directors, Voting regarding Assessments, Governing Documents and the Granting of the Exclusive Rights to Use Common Area:
- CALL FOR ELECTION OR OTHER VOTING MEETINGS
The call for a meeting to conduct the business of the Association including the "Notice of Meeting and Agenda" will proceed in the same usual and customary manner set forth in the Association's CC&Rs and Bylaws. The meeting notification process will not change under the guidelines of the Civil Code.
2. NAME IN NOMINATION
The Association shall mail a "Candidate Nomination Form" to all homeowners at least sixty (60) days prior to the election. Said form must be returned to the Association at least forty-five (45) days prior to the election.
The Board of Directors shall select or appoint "independent third parties" to be the inspector(s) of elections. The Board may choose to have either one or three inspectors of elections. 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.
The purpose and duties of the inspectors of elections is to:
1. Determine the number of homeowners entitled to vote and the voting power of each.
2. Determine the authenticity, validity, and effect of proxies, if any.
3. Receive ballots.
4. Hear and determine all challenges and questions in any way arising out of or in connection with the right to vote.
5. Count and tabulate all votes.
6. Determine when the polls shall close.
7. Determine the result of the election.
8. Perform any acts as may be proper to conduct the election with fairness to all members in accordance with this section and all applicable rules of the association regarding the conduct of the election that are not in conflict with this section.
The inspectors of elections are to be appointed after the close of candidate nominations but before the secret ballots are mailed to the homeowners and are to determine to whom the secret ballots shall be returned.
4. SECRET BALLOT
The election process sets forth the procedure for insuring that the ballots cast by the homeowners shall remain confidential until they are counted. The law states that "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 ballot itself is not signed by the voter, but is inserted into an envelope that is [then] sealed. This envelope is inserted into a second envelope that is [then also] sealed. In the upper left hand corner of the second envelope, the voter prints and signs his or her name, address, and lot, or parcel, or unit number that entitles him or her to vote". Failure to follow election procedure as adopted by the association will invalidate the ballot and the homeowner's vote.
The second envelope is addressed to the inspector or inspectors of election, who will be tallying the votes. The envelope (secret ballot) may be mailed or delivered by hand to a location specified by the inspector or inspectors of election or complete the ballot at the meeting. Please be aware that only those ballots which are delivered to the inspectors of the election "prior to the polls closing" shall be counted.
- PROXY BALLOT
The "Secret Ballot" process eliminates or at least mitigates the need for a proxy vote in that the homeowner may cast their vote by mailing in the secret Ballot. However, when a proxy is given, any instruction given for an election that directs the manner in which the proxy holder is to cast the vote shall be set forth on a separate page of the proxy that can be detached and given to the proxy holder to retain. The proxy holder shall [then] cast the member's vote by secret ballot.
All votes shall be counted and tabulated by the inspector or inspectors of the election in public at a properly noticed open meeting of the Board of Directors or homeowners. 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.
As secret ballots are returned to and collected by the election inspector, the inspector shall check off on a "sign-in sheet" that a ballot has been received for the respective unit. The first secret ballot received for any unit shall be the ballot of record and that vote which is counted. Any additional ballot(s) for the same unit shall be deemed invalid and shall be voided.
7. RESULTS OF THE ELECTION
The 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 results of the election in a communication directed to all homeowners.