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February 1, 2008
The "Taste" Test For Your Upcoming HOA Election - Do You Want Sour Lemons or Butterscotch?
Okay, maybe I have been a little hard on Boards and even attorneys in the last two posts on my blog. And since I know for a fact that owners can be just as problematic, I thought I would set the record straight. I am not in favor of people serving on the boards of their association if they are not in "good standing". By "good standing", I mean current with their assessments and in compliance with the governing documents and rules.[Note, this does not mean that anyone can go out and say it's illegal for a Board member to serve if they are not in "good standing". The question of legality can be resolved, but not by me, speaking my opinion - it would have to be resolved by a review of the governing documents.]
And although I think it more trouble than its worth in most cases, I believe that a Board does have a right to suspend a member's rights to vote in an election - if the CC&Rs or Bylaws (note, I did not say Rules and will explain below) provide the authority for it. What sometimes happens though is that Boards recognize they have a right to suspend a member's rights to vote, but miss the requirement (which is often present in the documents, although perhaps not in tidy language along with the suspension provision) of a hearing that must take place before the member's rights are suspended. Even if the documents do not have a requirement for a hearing before suspension of membership rights, the Corporations Code does, in Section 7341 - which requires a hearing before a member can be expelled or suspended. And yes, I know that there are those who will say 7341 does not directly apply, because we are talking about suspending the right to vote, but not suspending the member.
What I believe is that suspending a member's right to vote or suspending their right to attend a meeting are issues that go right to the heart of membership itself. And I am of the "camp" that believes if a member's right to vote is going to be suspended, that they have a right to know that before the election occurs, so that they can cure the deficiency if they want to. Sometimes an owner will not even know there is a problem, unless the Board sends notice to them.
And this is why I added the cavaet about rules vs the governing documents, when it comes to suspending member's rights.
The authority in the CC&Rs and Bylaws has higher integrity than the Rules. And although the Rules can provide more detail on any given subject, the authority for the Rules must come from the documents. I am not of the "camp" that believes a Board can alter the membership rights in the corporation, such as suspending rights to vote, by setting Rules just because the documents say the Board can set Rules. There is a difference between altering membership rights in the association and controlling use of property through the imposition of Rules (and what you can put in Rules relating to use of property is for a whole other discussion someday).
And this is where the "taste" test comes in. I suggest skipping the sour lemons and going right to the butterscotch - meaning address the membership in a way that "tastes better". Let all members whose rights might be suspended in an upcoming election know exactly why and what they can do to remedy the problem to be able to vote. If a hearing is not required per the documents, so be it. Even if a Board can suspend the rights or the documents say that an owner has no right to vote if their assessment account is not paid in full - it makes sense to let the owner know that this is jeopardizing their right to vote. If they want to vote, they are likely to clear up the problem! If you don't want them to vote, and you would rather spring it on them by noting when the ballots are counted that some ballots are being pulled for nonpayment of assessments, or some other issue, you are as much of a problem as they are.
An election tastes like sour lemons (maybe even worse, if really tainted) when owners are disenfranchised for the wrong reasons. Sure, I understand that Boards are often sick of people who complain at the meetings, withhold assessements, make architectural improvements without approval, and make their lives miserable. After all, who wouldn't be? But cutting them out of the election process without acting responsibly, and understanding the requirements in the governing documents, lowers the level of respect and suggests either incompetency or an inappropriate motive. And timing is everything. These are things the Boards should think about well ahead of the election:
Are we going to prohibit people from voting because of .......
If we are, we ought to make sure we do it right.....
Maybe we need professional advice ...
From a professional that sells butterscotch, not sour lemons.
Posted by Beth Grimm at February 1, 2008 9:25 AM