The California legislature has decided to mix things up for your annual election. Many associations’ current procedures will be invalid when this new law goes into effect on July 1, 2006 . The focus of this month’s newsletter will be the new election rules and procedures mandated by this new law and the questions it raises.
AB 61; Election Procedures. This new law amends various sections of the Davis-Stirling Common Interest Development Act (Civil Code) by mandating that all homeowner and industrial associations adopt certain election rules and procedures. The mandatory rules are stated below. If the board of a residential homeowners association adopts the mandatory rules before July 1, 2006 then the rules need not be sent to all homeowners for their input and comment prior to adoption by the board. Some of the mandatory rules appear to conflict with provisions in the bylaws of some associations. A board of directors should seek guidance from its legal counsel in drafting these mandatory election rules.
Access to Media . The new law mandates that, upon the written request of any candidate or member advocating a point of view, the candidate or member must be provided access to the association’s media, newsletters, or internet web sites, if any, during a campaign, as long as that candidate or member is using them for purposes reasonably related to that election. Equal access must be provided to all candidates and members advocating a point of view, whether endorsed by the board or not, as long as their purposes are reasonably related to the election. An association may 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.
Access to Meeting Space . An association must allow all candidates free access to any common area meeting space during a campaign, including those who are not incumbents, and to all members advocating a point of view, regardless of whether or not they are endorsed by the board, for purposes reasonably related to the election.
Qualifications for the Board. The qualifications for candidates for the board of directors must be stated in an association’s election rules. The bylaws often require that all board members be members or owners within the development, and that candidates be current in the payment of dues or assessment. Additional qualifications may be stated in the CC&Rs or bylaws of the association.
Nomination Procedures. Nominations for a director may be made by any member of the association. A member may nominate himself or herself as a candidate for a directorship. Other nomination procedures must be stated in the new election rule. Often, the bylaws specify the additional nomination procedures and allow nominations from the floor.
Qualifications for Voting. The qualifications for a member to vote must be stated in the election rules. Typically, members are required to be “in good standing”.
Voting Period. Written ballots must be sent to every member at least 30 days prior to the date set to count votes. The rules must state when and where ballots must be returned. The ballots must be secret and confidential and must be counted in an open meeting of the association.
Inspector of Election. The new law requires that either (continued on back)
one or three inspector(s) of election be appointed and requires that the procedure for appointing the inspector of election be set forth in the election rules. Inspectors of election cannot be board members, candidates for the board, or related to any candidate or board member.
Duties of Inspectors of Election. The duties of the inspector(s) of election include:
Determining the number of memberships entitled to vote and the voting power of each;
- Determining the authenticity, validity, and effect of ballots and proxies, if any;
- Receiving ballots. The sealed ballots must be in the custody of the inspector(s) of election until after the tabulation of the vote, at which time custody must be transferred to the association;
- Hearing and determining all challenges and questions in any way arising out of or in connection with the right to vote;
- Counting all votes in an open meeting of the association; and
- any other duties listed in the new law.
Confidentiality of Ballots. This may be the most cumbersome and confusing provision. The board must deliver or send by first-class mail the written ballots and two pre-addressed envelopes, with instructions on how to return the ballots, to every member at least 30 days before the date of the annual election. In order to preserve confidentiality, voters may not be identified by name, address, or lot, parcel, or unit number on the ballot. The association must use the procedures of the California counties for ensuring confidentiality of voter absentee ballots, including all of the following:
A. 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 prints and signs his or her name, address, and lot, or parcel, or unit number that entitles him or her to vote.
B. The second envelope is addressed to the inspector(s) of election, who will be tallying the votes. The envelope may be mailed or delivered by hand to a location specified by the inspector(s) or delivered to the inspector(s) at the meeting where the election is held. The member may request a receipt for delivery.
Proxies. Proxy instructions must be set forth on a separate, detachable page of the proxy that can be given to the proxy-holder to retain. The proxy-holder must cast the member's vote by secret ballot.
Voting Results . The results of the election must be promptly reported to the board and recorded in the minutes of the next meeting of the board. These results must be available for the members to review and publicized within 15 days of the election in a communication directed to all members.
Storage of Ballots. After tabulation, the association must store the election ballots in a secure place for at least one year after the date of the election. If there is a recount or other challenge to the election process, the association must make the ballots available for inspection and review by the members or their authorized representatives if they make a written request. Recounts must, of course, be conducted in a manner that preserves the confidentiality of the vote.
Other Rules. Other election rules may be set forth in the association’s election rules, as long as they do not conflict with AB 61 or the bylaws.
Obviously, the intent of this legislature is to provide for fair and reasonable elections. However, these procedures are very cumbersome, especially for small associations, and may lead to confusion, such as:
- If ballots are mailed out, must nominations be taken from the floor, as required by the bylaws?
- Does a proxy-holder vote trump a previously-mailed ballot?
- Why allow proxies at all if the vote is by ballot?
More legislation is being introduced. If this additional legislation passes, it may resolve some of these issues. Remember, your association may want its attorney to draft your new election rules and have them adopted by the board before July 1, 2006 .
- Amending CC&Rs
- Towing Vehicles
- Giving Away Exclusive Use Common Area