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March 27, 2006
Elections - What to Do Now - Especially in the Face of Apathy
Many Association representatives are contacting me and others asking for help with elections rules. I have a list, but for now have recommended waiting just a couple more weeks. Why? Because there is some really difficult law on the books, and a sorry attempt to correct the problems in the works, a cleanup bill (AB 1560) that after being massaged by all that have their hands on it, may fix some parts of the elections law, and complicate others. Once the amendments are back in the hands of the author, he may decide what he wants to pick and choose from the list and we could end up with a bigger mess.
The issue still is that no matter what a board does with the existing, or changed law, it will come into conflict with existing laws or governing document provisions and the new law is unclear on exactly what it overrides, and what it does not override. If you want to see a comprehensive list of all of the things that are wrong with the elections law, go to the Californiacondoguru website and take a look. Click on the Elections link or the What's New link and you will find a path to this list. I did not put this list together to be spiteful or insight (a freudian slip perhaps?) the author of the elections legislation. I put it together so that the public would be aware of the problems the industry is having coping with this legislation. And I think it is obvious that this elections reform law should be rolled back at least 6 months so that it can be fixed. According to my resources, that option has not been offered, but simply put, good sense dictates the need to take a closer look, and according to the most obvious problems, (see my memorandum listing the problems), more than 20 good reasons.
As for panic - do not do so. The law is in such a state of flux right now that if you get guidance from a knowledgeable resource and act in good faith in the coming elections, and attempt to do the voting by secret ballot as close as you can to the statutory requirements as they exist (remember, they could change any day), you should be able to have an election that will stand in court. Just make sure to document everything supporting the good faith part of it. And the reason I say do not panic, there is nothing you can do to change the current storm over this bill short of a plea to Senator Battin to amend his clean up bill to delay the implementation of Civil Code Sections 1363.03, .04, and .09 another 6 months.
And as for any association that has an apathy problem, how are you going to comply with the requirement to sent out a ballot to the members 30 days before the counting is done when you do not have sufficient candidates to require voting to fill the positions? I assume the same thing you have always done, do whatever is reasonable under the circumstances to get a board seated, whether the ultimate result is a legal election, or other means (acclamation or appointment) because you cannot get enough candidates or interest for a valid election.
Many associations have the first annual meeting, maybe an adjourned meeting (if the documents call for one), and if there is no contest for the director positions, announce the results by acclamation. Document the efforts to get members to run, the efforts to get people to the meeting (don't forego the proxies) and the efforts at the meeting to get volunteers to run. I do not see a barrier necessarily to doing as you always do by recruiting volunteers at the annual meeting to fill open spots.
There is nothing in the new law that will solve the problem of apathy and the difficulties in recruiting board members and in fact, I think it will make it a lot worse for associations that cut out the annual meeting and vote instead by mail for directors. If you can't get names on the ballot, why send it out? I think this will be the case in more than half to 90% of the association in this state. The public voting system does not have that problem because everyone and their brother want to run for President. In fact, they have to weed out the wanna-be "contestants". Not so in HOAs -people are not lining up to serve. Even the biggest complainers often just want to sit back and take potshots, rather than serving as a volunteer on the board.
Stay tuned. Those of you that have asked me to help with your elections rules, we will get there. Very soon I think. Those that have jumped the gun to adopt rules under Civil Code Section 1363.03 may well have to rethink their process and rules.
Posted by Beth Grimm at March 27, 2006 9:59 AM