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September 26, 2006
Apathy in Elections- It Keeps Comin' Up
Here is another and very common question/dilemma relating to HOA elections: "We have never had a real election because as far back as I can remember, we have not had enough volunteers to need a vote. The same board members have been serving for about 15 years. Do we have to send out multi-part ballots and what should we do about this?"
So the question arises as to whether an Association needs to go to the expense of sending out a ballot under the new law if there are no nominees, or not enough for a "contest". It’s a tough call. If the Board does not send out a ballot, any member of the association can challenge the election. It only takes one. Of course, if that one (and all others) are given a fair chance to step up, and the Board can prove by showing it sent communications to all owners asking for candidates, maybe the challenge will fail. Sending a ballot out before an annual meeting with write-in blanks seems a reasonable solution, because even if there are not enough candidates for a contested election listed, the Board tried in good faith to comply with the law. On the other hand, it may make more sense to give members notice that the Board is considering sending the ballot out after the annual meeting, and plans to use the meeting to generate interest in serving. Then, the Board can try to pump up the interest to get candidates and do the ballot thing after. Which process is more likely to win over a hearing officer if there is a challenge? If one or the other leads to a real election, the Board wins. If one or the other or both lead to deeming board seats filled by acclamation, it's hard to tell what a hearing officer would do. The same applies to the situation where a board tries and tries to get a quorum of ballots for the election of directors. Can they appoint? I would say that’s a reasonable response to a difficult problem. I believe the key is “good faith” because staying “legal” is not always an option. But only time will tell if I am right.
Posted by Beth Grimm at September 26, 2006 12:54 PM