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It's Not Easy Being The Election Inspector

Find Out How To Succeed!

It is easy to list the reasons why a qualified community association manager should serve as the election inspector in homeowner association elections. They include cost, convenience, familiarity and skill.

But, there are also reasons why that same manager should consider recommending that another (such as the League of Women Voters, the CPA or those specializing in this task) serve as the Inspector. This article – and the upcoming Webinar – focuses on the more challenging aspects of serving as an Election Inspector. In the webinar, we will discuss how to increase the possibility of successful elections.

What is an “Election”?

The Election Inspector duties contained in the Civil Code apply not just to the “election” of directors. The definition is broader and includes any vote to authorize assessment increases or special assessments requiring membership approval; the amendment of governing documents requiring membership approval; the granting of certain types of easements; and recalls.

These votes are subject to the voting laws contained in the Civil Code (secret ballot; 30 day voting period, etc.) but not all are: votes on things such as annexation, capital improvements and bank loans may have to be conducted under the ”old style” of voting “at a meeting” or by “written ballot.” The manager – whether or not the Inspector – must help the board determine which voting rules apply.

What Are the Hardest Things the Inspector Has to Do?

They are to determine the quorum and who gets to vote (the “good standing issue”); whether to permit nominations from the floor of a meeting; whether to adjourn a meeting; and applying cumulative voting rules to elections to elect or recall directors. Ultimately, the Inspector's job is to make sure that an election is carried out lawfully and fairly.

Before the Meeting to Count Ballots

Long before the meeting to count ballots, the manager must help a board make many decisions that could impact the validity of the process. These include decisions about whether under the governing documents and California law members who are delinquent in the payment of assessments or violating the documents are entitled to vote and what “due process” procedures may be required; and whether the quorum and membership approval requirements are affected by the “good standing” determination.

Decisions must also be made about nominees: do they meet the required qualifications; are nominations permitted from the floor; should ballots be distributed before or after the first noticed meeting; should more than one meeting be held; how will this be communicated to members fairly and clearly.

At the Meeting

Here, the biggest issues will be to make sure that the vote was consistent with lawful explanations provided the members and candidates; to verify quorum and ballots; make decisions about the validity of exterior envelope signatures and signatures on what are supposed to be “secret” ballots; counting properly if cumulative voting applies; and determining “when the polls close”. Other tough issues result if more than one vote is scheduled, especially if that other vote is subject to different voting requirements (which could include, for example, authorization to purchase property coupled with a special assessment and annexation) or cumulative voting.

“CV” Cumulative Voting

The point of CV is to permit members with a minority view to strategically “bunch up” their votes to elect at least one candidate who supports their views. Here is an example:

Assume a new board of 5 directors at Rancho Rialto is being elected. The main question is whether the association will oppose construction of a nearby “Big Box” store. A majority of members want to elect directors to oppose the Big Box store because of traffic; a few members however like the convenience of a nearby store and argue it will improve the local economy and help reduce assessment receivables if the store employs association members.

In a community whose governing documents do not permit CV, each member may only cast one vote per candidate. The result will be that the majority-supported candidates will prevail.

Let's say that the Rancho Rialto governing documents did permit voting by CV; those supporting the Big Box store “cumulate” or “bunch up” their votes and cast all five for their one candidate. Mr. BB. In this way, the minority of members could assure BB's election. Over time, Mr. BB might be able to protect the interests of those who elected him or even persuade the other directors to support the store. At the least, he could express contrary views at open meetings to provide a view of the issue different than that of the majority.

Reverse CV

Continuing, lets say a week after the election, a majority of members at Rancho Rialto are angry: they don't want any Big Box supporters on the board. They initiate a recall to remove Mr. BB. If the membership can remove BB by a simple majority vote, the purpose of CV would not be served; it would be almost pointless. Thus, a special rule was created to deal with a recall of one or more (but less than all) directors when CV applied. It is very complicated but the gist of it is that the number of votes cast in favor of the recall must exceed the votes that could (in a theoretical election, not the number of votes that actually were cast) have been cast to elect BB if votes were cast cumulatively. Before ballots for a recall get mailed, the Inspector must know how the Reverse CV rules apply. Probably, those rules will have to be explained to the membership and the candidates.

Another Recall Wrinkle (the “As If” Election)

It used to be that even if a director were recalled, she would remain on the board until her successor was elected. Now, it is different. As soon as a director is recalled, she is off the board. The remaining directors cannot generally appoint her replacement. This presents new challenges for the manager, whether or not he is also the Election Inspector. Let's consider Rancho Rialto: assume that the membership gets persuaded by Mr. BB that the association should urge the City Council to approve the Big Box store. Those members then initiate a successful recall of all (4) of the directors who still oppose the Big Box. Since all 4 directors are immediately removed, the board has no quorum and no ability to act. Mr. BB, the remaining director, could petition the Superior Court for relief but that is an unnecessarily expensive and complicated work-around.

A better plan is this: when the recall targets at least a majority of the board, the board should consider holding a recall and a vote to elect replacements “as if” we knew in advance that the recall, or some portion of it would succeed. While this solution is the cleanest and least expensive, it also has some complexity and controversy. The decisions will be made by the board or the membership but the Inspector will be the one presiding over the “as if” election: the nomination and good standing process will have to be employed; two votes and maybe two ballots will have to be scheduled; and lots of questions will arise. At the meeting, the ballots to elect directors would only be counted if the recall or a portion of it succeeded.

In the Normal Case

Most elections are not controversial or hard to implement. With good advance planning, an understanding of the association's governing documents (including the election rules) and applicable laws, the election can run smoothly.

The risks are when the election is for a large and opposed special assessment; a controversial recall; or when cumulative voting – or its explanation – may be confusing. Situations in which the Inspector must make decisions not supported by the board are particularly difficult and create actual, potential or perceived conflicts. These can usually be addressed in advance and, again, proper planning may be the manager's most important tool when considering service as the Inspector.

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