#299 – Reader Questions – HOA Election Glitches (part I)

By Kelly G. Richardson, Esq. CCAL

 

Dear Mr. Richardson,

Is there any restriction on note taking while inspecting election ballots in a delegate-based election? I believe copying is not allowed, but isn’t note taking considered to be different and unrestricted? Thank you sincerely, T.R., Rancho Santa Margarita

Dear T.R.:

In most HOA elections, any candidate or member may witness the vote counting, under Civil Code 5120, and inspect the ballots after the election, under Civil Code 5125. However, the voting by delegates is not subject to the election procedural requirements of Civil Code 5100-5145, per Civil Code 5100(d). So, during the member voting for delegates, the members may observe the vote counting, but not the voting of the delegates. I cannot imagine the rationale of barring you from taking notes while you inspect the ballots.

Thanks for your question, Kelly.

 

Kelly:

Our management company had our board hire an outside company to mail out ballots, receive them, and count them.  The ballots are to be counted at their office and if a homeowner wants to go there for the process they may do so. The company is 30 minutes away. They also put the annual election after the regular homeowner meeting and then the executive meeting so if anyone wanted to stay for the election results they could do so by waiting outside until the board had finished their executive meeting.  Some homeowners feel that they are disenfranchising residents.  Can you provide some insight?

D.H., Newport Beach

Dear D.H.:

The votes must be openly counted at either a membership meeting or at a board meeting convened to count the votes. A meeting at the management company may seem inconvenient, but if allowed by the association bylaws, is legally acceptable. However, opening and counting the ballots outside of a membership or board meeting violates Civil Code 5120, which requires that votes not be opened until the announced meeting. Elections should be clean and open, and member attendance should not be discouraged.

Best regards, Kelly

 

Hi Mr. Richardson,

During our current annual elections, the president obtained the private email addresses belonging to the membership and used them to solicit votes.  I was informed that the association does not maintain a list of email addresses and that such a list would have to be compiled. Now, it appears the manager has decided to include email addresses in the membership list. I am livid that the email addresses of all our members are now being distributed to any member who requests a membership list.  Does this seem proper?

J.R., Sun City

Dear J.R.:

While directors have access to all records of the association, if the board member is using them for their own individual purposes (such as getting re-elected), then the director is not acting as a director and is outside their role and therefore outside their access rights. While I routinely recommend associations solicit consent to send HOA notices via email (under Civil Code 4040(a)(2), that list of emails is not part of the membership list which members can request under Civil Code 5200(a)(9). There is an unusual case from 2010, Worldmark v. Wyndham, in which emails were ordered given to a member, but that was a very large timeshare organization and the facts would not apply to normal HOAs.

Thanks, Kelly

 


Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Managing Partner of Richardson Ober PC, a law firm known for community association advice. Submit questions to kelly@richardsonober.com. Past columns at www.HOAHomefront.com.   All rights reserved®.


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