Dear Mr. Richardson:

According to SB323 management is not allowed to participate in elections. But our management found a loophole – a spouse of one of the owners of the management company opened business as an Inspector of Election. Now this is our Inspector. Also according to Civil Code, candidates and members are allowed to check the election records, including signed envelopes. But now the management does not want to allow it because of Covid 19. Do you know a solution for these problems?

L.R., Walnut Creek

 

Dear L.R.:

Per Civil Code Section 5110(b), someone already under contract with the HOA cannot serve as Inspector of Election. However, even before the law changed, most managers (and lawyers) did not accept that role due to liability concerns. Small to mid-sized HOAs usually can handle their elections quite adequately with volunteers acting as Inspector, with assistence from the manager. If a management company has a relationship with (or will receive any benefit from) a vendor submitting a bid to the association, it must disclose any such relationships pursuant to Civil Code Section 5375.5. An Inspector related to management might appear be the best choice due to qualifications or cost, but if it raises concerns, it might not ultimately be the best choice. As to inspection of election records, the pandemic did not suspend the Davis-Stirling Act. HOAs and managers need to take reasonable steps to comply, even during these trying times.

Thanks for your question, Kelly

 

Kelly:

We had a situation where our submission form for board candidacy was limited to a stated length. Some incumbent directors sent much longer candidate statements, far over the stated word limit. We other candidates didn’t know this until our ballots arrived in the mail. I know that all candidates should have access to the same resources, and another candidate too was quite angry.

C.R., San Diego

 

Dear C.R.:

Unfair elections can be overturned under Civil Code Section 5145 by a Superior Court or Small Claims Court Judge. If the election violates the law, the HOA to preserve the election result must prove to the court that the violation did not affect the election’s outcome. Furthermore, giving an advantage to any candidate discredits the legitimacy of the HOA’s governance. Managers, boards and HOA lawyers should be careful to make sure no candidate receives an unfair advantage and that violations of election policies are handled fairly. Many of my clients with candidate statement length limits simply cut off each word after the limit, and then publish the shortened statements.

Hoping the next HOA election is handled better, Kelly

 

Kelly:

Can I post an election flyer on the neighbors’ doors informing them about why they should vote for me to be on the board? I think this is free speech.

Thanks, D.O., Tustin

 

Dear D.O.:

Civil Code Section 4515(b)(5) allows members to distribute or circulate ”information about common interest development living, association elections, legislation, election to public office, or the initiative, referendum, or recall processes, or other issues of concern to members,” so long as such distribution or circulation is “at reasonable hours and in a reasonable manner,” so be careful to be considerate and careful in that effort.

Best, Kelly

 

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to Kelly@rodllp.com. Past columns at www.HOAHomefront.com. All rights reserved®.

7 Comments

  1. James

    Kelly

    In order to conform with Civil Code §5105(a), if the inspector of elections solicits statements from the nominees to be included in the “election package”, which includes instructions, ballot, statements and envelopes and is mailed to the Members, does the inspectors of of elections required to solicit and/or include statements from Members who are not nominees?

    James

    Reply
    • Kelly G. Richardson, Esq. CCAL

      Hi James, and no I don’t think there is any requirement to seek and publish statements from those who are not candidates – imagine how that could go sideways. Not only would you possibly have endorsement messages, but what if someone thought a candidate was not a good choice? Would not that person have the right to counter an endorsement with a negative piece? Stick to candidate statements, impose a reasonable length limit, and the HOA should be well served.

      Reply
  2. Arleen Adams

    Agenda- what can a director do if the President refuses to put an item on the agenda for discussion?

    Reply
    • Kelly G. Richardson, Esq. CCAL

      I normally suggest that meeting rules/policies have a procedure indicating how items are able to be placed on the agenda. In the absence of rules, if the President continues to frustrate progress on an issue by not placing it on the agenda, make a motion in the open meeting for something to be placed on the next open agenda. That should take care of the issue so long as at least a majority of the board would like to be able to discuss the topic. I wonder if in addition to solid meeting policies/rules, maybe your board should seek a training session from your normal HOA legal counsel.

      Reply
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