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May 22, 2008

Elections Errors - How Do You Know What to Do About Them?

I get so many questions from readers about elections. Here are just a few ... and my answers to the best of my ability, given my knowledge and expertise. Do not take these answers as the only possible answers. The California elections law is just complicated enough and unsettled enough that attorneys disagree on answers and application of portions of the law. However, I think it fair to "weigh in" on some of the issues.

Here goes:

Question: "I'm on the board of our HOA and our management company mailed the call for nominations on the 29th of April and closed on May 2nd. Is there not an amount of lead time specified for this? Seems a little short notice to get people to be nominated."

I agree wholeheartedly, it seems way too short a time, and believe that any person acting as a hearing officer and deciding whether the election was fair or not would have a problem with a 3-4 day op to put one's name in the hat, especially for a mail solicitation, given that California law has a presumption in it of 5 days delivery time for first class mail. There is nothing in Civil Code Section 1363.03 that specifies a minimum time for soliciting candidates, but ... there is obviously something wrong with this picture.

Question: "What is the requirement and liability of the Board if the information that the Property Management Company [or Board] puts out for an election is incorrect? "

Answer: This is the way I would guess it might go:

LEVEL ONE : PROBABLY ACTIONABLE, PROBABLY SUCCESSFUL CHALLENGE: If what happens is directly contrary to the law, then any owner would have a right to challenge the election, and could probably unravel the election, if he or she could prove the errors were direct violations of the statute, or the intent of the statute. The idea of the statute is to make sure that elections are fair to all.

LEVEL TWO: As above in the facts about the time for weighing in as a candidate, if what the owner who wants to challenge the election is relying on facts and circumstances that are not contrary to anything stated in the law, because there is not any standard stated in the law, the hearing officer would probably give some consideration to whether the error mislead, misrepresented, or misdirected the owners such that the election was not fair.

LEVEL THREE: If an owner wants to challenge an election on something they perceive as unfair or illegal, and it is not in violation of the statute and there is a question as to whether it was unfair to all, or the owner just perceives it as unfair, the hearing officer would have more trouble unraveling the election.

Question: "I have a question about a recent election. I am on the Board. When the homeowners received notice for elections the letter stated that we had two positions available, however when the ballots arrived via mail in February there were three (3) candidates names on it and we were told that we had three (3) votes now. Our monthly statements had the annual meeting date as one day but on the ballots and election paperwork there was another. At the annual meeting the Property Manager said there was no quorum however there was no sign in list or other supporting documentation present. The Property Manager indicated that it was a clerical error. The board did not take any action to correct the misleading information and at the next meeting there was again no quorum, no homeowner list, and no election."

Answer: This sounds like a series of errors and it apparently no election results were announced. Should there have been? This Board can go back and correct the errors; however, should it? Someone would have had to count the ballot packages that were returned in order to determine if there was a quorum because a sign in sheet for the meeting would not do it. Maybe it was obvious there was not a quorum, so obvious that no one made a move to get formal. It is hard to tell.

The other problem seems to be a lack of interest. After two times without a quorum - if true, it would be time for the Board to make a decision. Given the errors, does the Board go back to square one, or count the votes that are in and name the candidates? Here, it seems there were 3 candidates for 3 positions ("we got 3 votes"), after two tries, and it the question arises as to whether the Board should go backwards, or forwards.

It's a good question that I cannot answer as a legal opinion, but I would be inclined to think that it makes sense to go forward, even recognizing that there were some errors. There are probably facts that I am not getting through the questions asked and they could be important in the scheme of things, but lack of quorum and interest in elections is a common nagging problem for HOAs, and I am not of the camp that believes that HOAs have an obligation to keep calling for another counting date, and another, and another, until the enough members "wake up" and vote (because it may never happen). The biggest "non-statutory-error" is the failure of owners to vote when given a fair opportunity to do so. If that opportunity was not fair, then we are talking about a completely different animal.


Posted by Beth Grimm at May 22, 2008 9:20 PM