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June 30, 2006
APATHY IN A BOARD ELECTION
A reader from the Guru site sent this recently:
"Explain something to me -
Our elections are coming up in a two weeks. Two Board positions are open. Only two people have put forth their desire - nominations - to be on the Board. The current Board solicited several times in mass mail to all the members and locally on site. Only two have stepped forward.
How does this effect the election process? There are only two. They MUST be elected or there is no Board.
Do we still go through the "send out the proxies, have everyone vote?"
This question comes up at least once a week. Apathy with a big "A" is a very big problem in HOAs, as I have said again and again, and written about again and again. (There is an article on the Guru site http://www.californiacondoguru.com all about Apathy, with some suggestions about generating interest, by-the-way.)
In answer to this reader's question, some professionals giving advice would say to keep trying until you get there (in the context of noticing meeting after meeting, or sending out ballot after ballot. However, many, I think, would say - document the efforts to get candidates and then declare the volunteers (by board action) to be put in the positions by "acclamation." This means without an election. This is something that is going to come up in the new elections law and the question is going to be: "Do we have to send out the double envelope ballot if we only have two willing candidates for two positions." I ask you - is that not a waste of good association money? Do Associations have to send out scads of paper and go to an expense just because bala specific ballot process is dicatated by statute? It's not really an election if directors are declared by acclamation. So the question really is whether the Board has to go through the motions of an election when the candidate pool is no larger than the board vacancy pool. Some associations will send out a ballot with a space for write-in candidates. The cleanup bill to the elections law says Boards may do that. However, if the Board has sent out mail solicitations and has taken other steps to try and find candidates and cannot, seeking write in candidates may not make any sense. Why allow for write in candidates when someone is not willing to come forward and have their name put on the ballot? That allows an owner who might think that their neighbor would be a candidate to write in their name without regard to whether they are even the least bit interested in serving. The result would be that that person could end up on the board, without even knowing he or she was nominated.
What about soliciting more nominations at the annual meeting? I certainly think this is a viable option. However, then a board has to arrange for owners to be able to vote at the meeting which calls for combining the double envelope mail ballot system with proxies and meeting attendance. It can be complicated. If this happens, then the process I think will work best is to make sure to let the owners know they can either mail their ballots in, or bring the whole package to the meeting where nominations will be solicited from the floor, or sign over their package by proxy to someone else to bring to the meeting and vote. The more types ofballots and proxies involved in any election, the more confusing the process for the Inspectors becomes.
Now, what if there are more candidates than positions, but the board cannot, after reasonable efforts, get a quorum? If the documents call for an annual meeting and adjourned meeting, those efforts can be made (and maybe should - although who am I to judge). The new elections law does not require a meeting. So if there is one pass through election and not a quorum, what is a Board to do?
Some experts would say try again, ... and again, ... and again .... .etc. until you get a quorum. I say - consider the expense of sending out ballot package after ballot package? Or the inconvenience of calling meeting after meeting after meeting and weigh your options accordingly.
Why not have the current board - that is normally considered to remain in place until their successors are elected - (ex the ones running for reelection, unless all are up for re-election) seat new board members by appointment - choosing the highest vote getters among those running. I am of that camp. Even if all of the Board members are up for re-election, and there are more candidates, good sense tells me that if the current Board appoints those top vote getters - any challenge to the appointment choices should fail.
Let's be practical. These processes are not invented now to deal with the new elections law; they have been practical solutions advised in the past to combat apathy and allow associations to move forward without exhausting all resources trying to get members to care what happens. The most intriguing new question is whether a ballot package under Civil Code Section 1363.03 must be sent to members when there are fewer candidates than positions open, or just enough to fill them, after a valiant effort to drag owners out to run. I think not, but only time will tell, as we have experience in actions taken and challenges made behind us.
I am comfortable enough with things to say that its a balancing act. If the Board feels it has made reasonable efforts to solicit candidates and sufficient efforts to achieve quorum and cannot get enough interest to do one or the other, then choose the practical solution, and document your efforts. You may have to convince a judge or small claims hearing officer that your efforts were enough. But judges can be reasonable people, ... am I right?
Posted by Beth Grimm at June 30, 2006 10:35 PM