…or, resist the urge to control your Inspector of the Elections
By: Roy Helsing
I have often been vocal about the current HOA election rules for associations in California. It is a complicated, double-envelope procedure that is costly, slow, confusing, and cumbersome. That said, it was brought into law by complaints to the legislature about Boards being unfair in the election process. It was clearly an attempt by the legislature to isolate the Board of Directors from the election process. Now, after several years of implementing these HOA election rules, I still feel it is costly, slow, confusing, and cumbersome. However, it has become abundantly clear that Boards do attempt to influence elections. The true check against election tampering within current law is that the association must appoint (or elect) one or three independent inspectors of the election. The inspector(s) of the election have many duties, but all combined boil down to preserving the sanctity of the election. The key concept here is “independence” which means “not subject to the control of others”.
This concept of independence seems generally understood, but seems quickly forgotten when a Board of Directors (or sometimes even just one Board member) decides they don’t like the possible outcome of the election. On the surface, this sounds sinister – the Board is doing wrong! In practice, it has been my experience that in almost no case does the Board feel they are doing wrong. They collectively (or some of them independently) honestly believe they are trying to do what is correct. Examples include:
· Asking the Inspector to delay counting the ballots so a Board member can be present
· Asking the inspector to extend the nomination period because they don’t like the nominees, or feel there are not enough nominees
· Trying to dictate the appearance of the ballot
· Asking to collect more ballots after the date the ballots are due because they feel the vote may not have enough support.
· Campaigning for a position (in a CC&R or bylaw change election) or for a person (other than themselves) in a Board election.
In each of these cases, the Board (or Board member) may feel that their desire is in the best interest of the association. Perhaps they are, but the problem is that as soon as the Board interjects itself into the process, the inspector has lost independence and the election results may now be challengeable.
Association elections do get challenged. Recently in Wittenberg et. al. v. Beachwalk Homeowners Association (217 Ca..App .4th 654) the Court held that “…board members are treated as any other member…” as it pertains to equal access to association media. In this case the Board clearly went out of its way to campaign for an election position and denied equal access to the opposition. While in this case access to media was the issue, the underlying concern of the Board operating inappropriately is present.
Your association’s HOA election rules, if properly adopted, control issues that are no longer subject to Board jurisdiction once the election process begins. To that extent, when you hired or appointed or elected the inspector(s) of the election you gave them independence – the ability to act in ways that you may not agree with as a Board. When you take a position that the ballot count needs to happen when a specific person is present (Board member or otherwise), as opposed to the membership being present, you have tampered with your own HOA election rules. When you decide to ask the inspector to restart the nomination period because you want different (or more) candidates, or for any other reason, you again are tampering with your association’s HOA election rules. Try not to do that. If the inspector is worthwhile, they are not going to comply – because it is their job to make sure no one, including the Board, may influence the outcome of the election; other than what your rules and the law allow in terms of nominations, campaigning, ballot submission, and election time periods.
If as a Board member, you do feel your inspector of the election is not doing what they are supposed to be doing – contact the association’s attorney, advise them of your concern, and then listen to the advice. If your inspector is in fact acting inappropriately, you will need the attorney’s help. However, if it is just a matter of the board wanting a different outcome, the few dollars spent up front will save you a lot of money down the road in the courts if the election is challenged.
The Helsing Group, Inc.
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