By Kelly G. Richardson, Esq. CCAL
Dear Mr. Richardson: I have been a director of a mid-sized association. About 90% of the homes are owner- occupied. For the last three years we have been unable to obtain a quorum. Each election we tried three times, but fell just short. As the result we, the last elected directors, continue to serve.
Several months prior to the annual meeting, we seek candidates. We announce the membership meeting in the monthly billing and post signs around the pool area, yet continue to fall short of quorum.
Until about 5 years ago, we directors used to walk the community, knocking on doors with spare ballots in hand, encouraging voting. Then management told us to cease because it violated the Davis-Stirling Act. We have not had a quorum since.
Do you have any suggestions?
The long term solution is to revise the association bylaws to reduce quorum for the purpose of board elections. Quorum is important to ensure important membership decisions are made with broad membership support. So, when revising bylaws, I typically set quorum as 50%, with a drop-down in quorum to 25% if quorum is not met on the first attempt. Of course, the catch is that a membership vote is required to amend the bylaws. If the association tries repeatedly to amend the bylaws and fails solely due to lack of participation, contact the association’s attorney about filing a court petition under Corporations Code Section 7515(c). Under that section, if “good cause” is shown, a court may dispense with the quorum requirement and approve a bylaw amendment which is in the best interests of the association.
As to campaigning for involvement, your manager was wrong. There is nothing wrong, and much right, with the directors trying to “get out the vote.” Your manager may be misreading the case of Wittenburg v. Beachwalk, a decision published in 2013. In that case, an association board had been campaigning for a CC&R amendment which proved to be controversial. The board’s main mistake was refusing to allow dissenting groups to meet in association common area, creating an unfair decision process. You directors are homeowners also, so campaign, but do not use your position to unfair advantage – such as using information which the members cannot access, or limiting opposing viewpoints or candidates. Your manager can also encourage participation, but never should take a side in association director elections. Managers who get involved in HOA politics are interfering, and violating their ethics to the HOA. Such behavior should not be tolerated and the manager should be reported to their credentialing organization.
There are some other short term ways to encourage participation. Ask off-site owners to file a “quorum-only” proxy with the HOA. Combine the member meeting with a social event. Form an elections committee to work under the supervision of the Inspectors of Election, to promote participation (NOT promotion any particular candidate). Have a prize drawing for those who participate.
Someday, hopefully, the Legislature will allow HOAs to use on line voting. Unfortunately, that option is not possible under current law, and a few years ago the former Secretary of State opposed CAI’s attempt to allow homeowner associations to use on line voting (as can all California non-profits except for HOAs).
Thanks for your question, Kelly
Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Managing Partner of Richardson Harman Ober PC, a law firm known for community association advice. Submit questions to KRichardson@RHOpc.com. Past columns at www.HOAHomefront.com. All rights reserved®.
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