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 thirty (30) 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.