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January 12, 2007
Identifying Incumbents on a Ballot - Is it Fair?
I recently had a question posed to me that I think is probably a common one. This, from a manager:
"We recently sent out a ballot for an association and a homeowner contacted me and questioned the fact that some of the candidates were identified on the ballot as incumbents. Is this allowed? Is this specifically not allowed?"
The new California HOA electiions laws do not specify whether candidates in an HOA can be identified in materials or on the ballot as incumbents. It would make sense that owners who know nothing about candidates have a right to know whether those who have been nominated have any experience on the board. On the other hand, it would be reasonable for a non-incumbent to argue that listing that identifying factor on the ballot creates a bias in favor of certain candidates and that giving that advantage is unfair.
The truth is that a candidate has a right to identify themselves as an incumbent in any statement submitted, any speech given and any opportunity he or she has to address the members. However, I believe that identifying incumbents on the ballot could be seen as inequal treatment of candidates. I am not saying, however, that if this occurs, an election would automatically be invalidated or required to be done again if challenged. That would be decided a case by case basis and there are many factors that could affect a decision of an election challenge based on this particular issue.
For your information, the new law (Civil Code Section 1363.03) provides that Associations must: "(1) Ensure that if any candidate or member advocating a point of view is provided access to association media, newsletters, or Internet Web sites during a campaign, for purposes that are reasonably related to that election, equal access shall be provided to all candidates and members advocating a point of view, including those not endorsed by the board, for purposes that are reasonably related to the election. The association shall not edit or redact any content from these communications, but may include a statement specifying that the candidate or member, and not the association, is responsible for that content. AND (2) Ensure access to the common area meeting space, if any exists, during a campaign, at no cost, to all candidates, including those who are not incumbents, and to all members advocating a point of view, including those not endorsed by the board, for purposes reasonably related to the election."
It is probably this equal access and equal treatment language that leads people to question the ability to list candidates as incumbents as it is believed by some that that will give the incumbent candidates an unfair advantage in the election.
However, it is as yet an untested argument under the new law. My advice is to not identify incumbents on the ballot, but otherwise allow candidates to identify themselves as incumbents. After all, Associations are not allowed to redact language in candidate's statements and even if they were, whatever a candidate wants to say about themselves, including identifying board service as experience, should be allowed.
This new law will trip up many along the way, until it is fully understood by all (which will probably be never, unforetunately).
Posted by Beth Grimm at January 12, 2007 9:28 PM