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November 1, 2006
Should, or May, HOA Managers and Attorneys Act as Inspectors of Election?
The new law on elections in California requires choosing or electing Inspectors of Election for most HOA elections, to provide an unbiased source for monitoring elections and tabulating ballots.
The possible choices are limitless, although suggestions are made in the statute, including public elections pollworkers, CPAs or notary publics. An Association can use members or vendors; however, if the HOA wants to use the vendors, the Election Rules must specify that as an option.
HOAs need to consider the choices for any election. Thought needs to be given about whether any special expertise is needed, or the election is likely to be controversial. In many cases, association Members may suffice as inspectors. With regard to any election, consider the likelihood of controversy. Using a Member where a trained Inspector of Election who could handle some controversy would be a better choice could result in mayhem at a meeting where the election is hotly contested or the measure is hotly opposed. Appointing anyone who is controversial will probably result in controversy with regard to the election. And you certainly do not want Inspector(s) likely to walk out of a meeting if there are heated discussions about the process.
As to using Association vendors, consider this. The Association’s attorney can be accused of a conflict of interest if he or she ends up having to make the ultimate decision as to whether or not to accept proxies or ballots that would make the difference in the board makeup. He or she could be the right one to provide guidance as to what laws might apply if there is a question about a ballot or proxy. Still, it is probably best if the final decision is left up to an independent Inspector as to whether a ballot or proxy should be deemed valid. Management, the Board and Inspectors should be encouraged to raise any questions ahead of the meeting if it any can be identified as the date approaches. If a question arises during a meeting that requires a legal opinion, it seems to me that the Board and Inspectors could wait to announce the results of the election until legal counsel can be consulted. The notice could ultimately be done subsequently by mail once the legal ruling is obtained. I am certain questions will arise at elections for which there are no apparent answers. Inspectors may feel comfortable ruling on the issues that arise, or not. But there has to be a reasonable way to address problems that are not resolvable on the spot.
As for managers, many Associations will want to use the managers, simply because they are most familiar with elections and the processes. Just keep in mind again, that there may by a challenge to a manager making a decision as to whether or not to allow counting of ballots that do not conform exactly to the stated rules or instructions. The decision could in essence end up to be to accept one board slate or another and this could put the manager in a very untenable position, and could subject the election to challenge, justified or not. It would be fairly easy for a disgruntled slate of board members to argue that the manager had a bias.
On the other hand, the manager may be in the best position to do the work the most efficient and cost effective manner.
So, before choosing Inspectors, think about it.
Posted by Beth Grimm at November 1, 2006 9:40 PM