By Kelly G. Richardson, Esq. CCAL
Our board and manager are unable to conduct an election, and our election, already past due, remains supposedly at a future date “to be announced”. I’ve been writing to a number of authorities to get insights, and one leading authority for a HOA organization put it bluntly “your Board and property manager should not be conducting your election.” He did not elaborate.
Our community has always used the services of agencies who specialize in conducting elections. This time, our manager chose our attorney as our inspector, who in turn said the election could not be conducted without first establishing “election rules.” Previous inspectors have never expressed this concern.
Can you speak to elections being conducted by the board and manager and the relative benefits and drawbacks to having an outside agency conduct the election?
Very respectfully, B.N., San Diego
Civil Code 5105 requires all common interest development associations to adopt election rules, and contains the minimum requirements of those rules. The statute does not indicate what would occur if an association did not have rules in place yet still followed the election procedures set forth in Civil 5100-5135. I think most mainstream HOA lawyers would say that in that situation the election would be valid (but would recommend the HOA adopt election rules before the next election cycle). So, I disagree with the attorney’s statement that the election could not proceed.
Civil Code 5110 requires the association select one or three persons to be inspector(s) of election. The appointment should be by board action in an open meeting. The inspector(s) cannot be a candidate or related to a candidate, and cannot be currently under contract to the association (i.e., the manager or attorney) unless the rules specifically allow it. Even if rules allow it, managers and lawyers are best used as helpers to the inspectors and not as inspectors.
Since this election law reform first took effect in 2006, a small new service provider sector, the professional inspector of elections, has emerged. There is a wide range of expertise and experience among these service providers, who are not credentialed or certified in any way. Your professional manager probably has some experience with a number of professional inspectors, and may be of help in identifying a good choice. Typically, inspectors do not have their own legal counsel (their fees do not include such service), but will often stray into making legal opinions instead of relying upon the HOA’s attorney.
While professional inspectors are fine, and often provide a higher level of appearance of integrity in hotly contested elections, most associations are adequately served by one or three volunteers, assisted by the manager (and, if necessary, association legal counsel). The larger the association or the more contentious the election, the more likely a professional election inspector will be very helpful and necessary. Smaller to mid-size associations will typically find volunteer inspectors are adequate for the task.
The election reform, passed in 2005, is another example of a “one size fits all” law which fits larger associations best. However, until the law finally acknowledges the thousands of small HOAs in California, the 5-unit condo association will have to have written election rules and election inspectors, same as the 1,000 member associations.
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 firstname.lastname@example.org. Past columns at www.HOAHomefront.com. All rights reserved®.
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