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October 14, 2005
Inspectors of Election - Will They Be Able To Do Their Jobs?
Beginning July 1, 2006, elections in Associations will be more structured, and more complicated (see prior blog). Associations will be required to appoint 1 or 3 independent Inspector(s) of Election to oversee the elections. Independent means someone who is not affected by the election or compensated for services by the Association. The statute suggests as possibilities: "... , a volunteer poll worker with the county registrar of voters, a licensee of the California Board of Accountancy, or a notary public." None of these persons is likely to be trained in legal principles of HOA elections. This could be a problem given the confusion created by the new elections statute embodied in SB 61 (discussed in prior blog). The Inspector(s) are charged with the following tasks:
--"Determine the number of memberships entitled to vote and the voting power of each.
--Determine the authenticity, validity, and effect of proxies, if any.
--Receive ballots.
--Hear and determine all challenges and questions in any way arising out of or in connection with the right to vote.
--Count and tabulate all votes.
--Determine when the polls shall close.
--Determine the result of the election.
--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."
In order to do so, the Inspector would have to have access to and understand the association's bylaws and any other governing documents that have provisions related to voting and elections. And in areas where the new statute conflicts with the governing documents and Corporations Code (such as the practical effect on cumulative voting and use of proxies discussed in earlier blog), the Inspector would have to make rulings that have legal effect. If the governing documents have "good standing" requirements limiting the right to vote for some, the Inspector would need to determine who is entitled to vote. Signatures will have to be verified. It's a job fraught with potential legal liability. There are ways to minimize the possible problems, with foresight, by having the Association's legal counsel provide opinions before the election on various scenarios like those described in the prior blog. Of course, if any Owner brings their own attorney to the meeting, another opinion or opinions may be injected.
Maybe the legislators will see the problems and fix the legislation to clarify what happens when a conflict such as that described occurs. Maybe not. What is likely to happen is that a new cottage industry of "Election Inspectors" will probably be generated by the bill, because more than 30,000 elections will take place every year that require the involvement of an Inspector or Inspectors of Election after July 1, 2006.
Posted by Beth Grimm at October 14, 2005 8:52 PM