CookieB
(California)
Posts:19
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| 11/03/2011 7:42 AM |
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I live in California and a brand new condo owner. I was about to vote on Ammending our CCR's when I recalled reading something about a secret ballot. My ballot had my address on it and a instruction to vote yes or no. That's it. It had a envelope addressed to a non board member. No stamp.
After reading the CA Civil Code, CLEARLY this method is not in keeping what what I interpreted as a Secret Ballot.
I brought this to the attention of one of the board members who basically said that I was incorrect in my interpretation on the civil code and even if I was, most of the votes were in and they were not going to redo the votes! What???
I did not turn my vote in since it had my address on it and therefore it was not 'secret'.
My questions for this community are:
1) Am I correct in assuming that a Secret Ballot is needed to ammend the CCRs?
2) What actions, if any, would be appropriate if they send these CCR's into the state next week as 'approved' if they were not done by secret ballot?
PS: Our community is small, less than 50 units. I had suggested to the board member a simple re-vote with the appropiate voting regulations would be fairly simple, but nooooo, I'm wrong! LOL
Thanks in advance!
Cookie |
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JeffR7
(California)
Posts:245
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| 11/03/2011 7:58 AM |
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You are correct. In California a secret ballot is required for election meetings, certain votes dealing with regular or special assessments, CC&R and Bylaws amendments.
The proper way for a secret ballot is to have a ballot itself without any markings as to person's name, address, or any identifiable information. You put that ballot in an unmarked envelope and you seal it. that envelope shouldn't have any markings on it either. You then put that envelope inside another envelope that has the address of the person it's going to, your name, your address, and your signature.
This is being sent to a person who is not a board member. All counting must be done in an open meeting with proper notification with all members. At the meeting the inspector of election must separate inside unmarked envelopes from the outer envelope and after that open them and count votes.
Any election not done this way is invalid and decisions made must be annulled.
You should talk to your board about this and let them know that they are in violation of California Davis Stirling Act. Unfortunately to stop them from moving forward you might have to go to court and challenge the document.
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CookieB
(California)
Posts:19
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| 11/03/2011 8:17 AM |
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Jeff,
Thank you for your prompt reply.
I did go to a board member. It is my belief, unfortunately that they, in their rush to get these CCRs passed (which contain errors/ommissions per the civil too) will not do another vote.
If I do go to court, will I have to do it on my own or on behalf of the association, do you know?
Feeling like I'll need to get some legal advice eh?
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BradP
(Kansas)
Posts:2491
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| 11/03/2011 8:19 AM |
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| Cookie...court would be on your own dime, however, you could always ask for attorneys fees in any lawsuit. Instead of doing that perhaps your approach should be to inform every board member this was done illegally and see what reaction you get. |
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CookieB
(California)
Posts:19
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| 11/03/2011 8:31 AM |
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Good idea. Instead of just the one, I'll mail a notice to each board member.
Thanks. |
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BradP
(Kansas)
Posts:2491
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| 11/03/2011 8:43 AM |
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| IF that doesn't work at the end of the day you would have to weigh the benefit of using the courts to enforce this...ultimately the cost to defend will come from dues that everyone pays. Unless there is some other fraud going on I would make sure the board knows and state it at an open meeting that rules were not followed and the election invalid and the association is open to being sued and leave it at that. |
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RogerB
(Colorado)
Posts:4686
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| 11/03/2011 9:06 AM |
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Jeff, the procedure you describe may be commonly used but I wonder how wrongdoing is prevented. It seems to me that ballots can easily be removed and replaced with an opposite vote when there is no signature on the ballot.
In Colorado, DARCO recommends using ballots which have the unit ID, signature, and date. And when the CC&Rs are amended and restated in their entirety these ballots are filed as part of the updated CC&Rs. |
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RichardP13
(California)
Posts:836
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| 11/03/2011 9:47 AM |
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Cookie
Was there another envelope enclosed with the ballot package?
As a property manager who conducts elections for Associations, the documents I would send in the package are:
1. Notice of Meeting and its purpose (This would be tghe meeting to count the ballots)
2. A summary of the changes to the Bylaws or CCR's, and if neccesary, the complete Bylaws and/or CCR's (if they are being restated)
3. The actual ballot
4. A #9 envelope, stamped secret ballot.
5. A #10 envelope pre-addressed to the Inspector of Elections, with a label in the upper left hand corner with a signature line right below the return address label. All envelopes MUST be signed to be valid.
At the meeting, there is a procedure that ensures the ballot remains secret. The information on the outer enevelope is verified to ensure quorum requrements are met, if any. Once verified , all outer envelopes are opened and separated completely from the secret ballots. Once separated, I would shuffle the secret ballot envelopes and then open one by one tallying the votes.
The election is followed to the tee according to Civil Code section 1363.03. |
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JeffR7
(California)
Posts:245
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| 11/03/2011 9:47 AM |
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Roger, the process I described is spelled out in the Davis-Sterling Act. The reason you have to open envelops and count votes in an open meeting is to prevent any tampering.
Here is the link to the statue http://www.davis-stirling.com/SecretBallots/tabid/2012/Default.aspx#axzz1cf5ktDTv
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CarolF
(Florida)
Posts:227
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| 11/03/2011 9:54 AM |
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My question is the same as RichardP.......are you absolutely sure there wasn't a small ballot envelope enclosed?
Ask your neighbors if they received it with the small envelope enclosed. A secret ballot is basically a 3 envelope system. |
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CarolR11
(California)
Posts:436
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| 11/03/2011 10:04 AM |
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Jeff & Richard are correct, Roger. Secret ballots are the law here. Opening & tallying them at an open meeting prevents tampering.
Cookie, there must be one or three "Inspectors of Election." In our HOA, the board appoints them from among owners who volunteer.
It is a good idea, as Brad suggests, to write a letter to every board member pointing out their mistakes, and ask that the letter be included on the agenda of an open meeting. Attend that meeting, Cookie, and make your case. Make sure that it's noted in the minutes. Sounds like your board is playing pretty fast & loose with the law.
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CookieB
(California)
Posts:19
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| 11/03/2011 10:04 AM |
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To answer your questions here's what I recieved:
A white binder with the entire CCR's. Hundreds of pages Not just what was being ammended but the whole kit and kabbodle. The items that were to be ammended where not highlighted in anyway. The current CCR's are about 15 yrs old so they thought they'd just give us everything instead of just what was being ammended and we could just vote on 'everything' as a whole. Oye.
I got one envelope (no stamp) addressed to Mr <> (who is not on the board)
address
city state zip
I got one ballot that says:
-----------------
Ballot for CCRs and Bylaws
blankety blanky HOA
address
city state
To: MY ADDRESS (this was what caught my attention)
"This is a ballot for you to vote on the CCR's and Bylaws. Please return the ballot within 30 days to in the self -adressed, stamped (no stamp) envelope"
____ Yes I agree with the new CC&R's
____ No I do not agree
Thank you for your prompt return of the ballot.
--------------------------
And that was it! |
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CookieB
(California)
Posts:19
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| 11/03/2011 10:04 AM |
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To answer your questions here's what I recieved:
A white binder with the entire CCR's. Hundreds of pages Not just what was being ammended but the whole kit and kabbodle. The items that were to be ammended where not highlighted in anyway. The current CCR's are about 15 yrs old so they thought they'd just give us everything instead of just what was being ammended and we could just vote on 'everything' as a whole. Oye.
I got one envelope (no stamp) addressed to Mr <> (who is not on the board)
address
city state zip
I got one ballot that says:
-----------------
Ballot for CCRs and Bylaws
blankety blanky HOA
address
city state
To: MY ADDRESS (this was what caught my attention)
"This is a ballot for you to vote on the CCR's and Bylaws. Please return the ballot within 30 days to in the self -adressed, stamped (no stamp) envelope"
____ Yes I agree with the new CC&R's
____ No I do not agree
Thank you for your prompt return of the ballot.
--------------------------
And that was it! |
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RichardP13
(California)
Posts:836
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| 11/03/2011 10:09 AM |
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Cookie,
If your ballot was sent to you like a business letter with your name and address and you were to vote and return that ballot, the ballot is invalid and the election null and viod. Period !! |
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CookieB
(California)
Posts:19
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| 11/03/2011 10:10 AM |
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I just wrote and mailed the letter to all the board. Let's see what happens. The HOA meeting is scheduled for the 14th.
I will write another letter and ask that it be read at the meeting too I guess! Good suggestion. What if they refuse?
I'm going to have to start a new thread for all the other issues with this board! Thanks for your help with this one so far!
You guys are the best!
Cookie! |
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CookieB
(California)
Posts:19
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| 11/03/2011 10:14 AM |
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Richard,
Gosh the little details. One of the board members walked up to each unit with the White binder I described above with the single envelope and the single ballot.
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CookieB
(California)
Posts:19
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| 11/03/2011 10:23 AM |
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Brad,
I agree that one must weight the options of going to court and the costs to the association etc and whether or not there is fraud going on here as a result of non complaince with the law. These people, as I said, don't even know what the Davis Sterling Act is, which is NO EXCUSE whatsoever. This association has been in effect since 1974 and no one knows?
I think the bigger issue here is what exactly this board will do with this information. Will they comply with the law or will the take the attitude that they don't have too. I think that, more than anything, is what I am evaluating.
It will tell me and this community alot about this board.
Don't you think?
Cookie |
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JeffR7
(California)
Posts:245
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| 11/03/2011 10:29 AM |
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Cookie, I have to add one thing to this discussion. There is a letter of a law and intent of a law.
Is there anything in the new CC&Rs that is controversial? Lots of changes from what you used to have? Just think what you are fighting? Sure if they are trying to pass something that you don't agree with, you have all the options and you'll win the case, but if you agree in a principal to the new doc, why fight it? just to tell them that they are wrong?
By the way what they are doing is called restating CC&Rs, not amending CC&Rs. Amendment would be a small document only describing changes. This is a restatement where a completely new document is being recorded. It's probably a good idea if your docs are 15 years old.
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BradP
(Kansas)
Posts:2491
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| 11/03/2011 10:32 AM |
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Cookie:
It will tell you a lot about people's integrity. Let's be honest the rules could be sidestepped numerous times in any association without issues or repurcusions...but when you have people with questionable integrity and character that is when the red flag gets raised.
Good luck |
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RichardP13
(California)
Posts:836
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| 11/03/2011 11:18 AM |
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| To clarify a point. As a property manager, we can only be inspectors of elections if the Board appoints us and the Association has a set of election rules in place as required by Civil Code 1363.03(c)(2). |
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CookieB
(California)
Posts:19
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| 11/03/2011 3:09 PM |
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Restating vs Ammending. Interesting.
They are, in fact ammending the existing old CCR's that is they are adding new CCR's to the old ones, AND restating/rewording the old ones to bring the up to date (even though they are still wrong and not in keeping with the current civil codes).
They are having us vote on the entire packet as a whole and plan to submit the package as a whole.
What I mean to say is this: The packet contains the entire HOA CCR's, old and new, combined in total. There is no differentiation noted as to which is exactly the same, which is new, which is being reworded.
There are several new items I do not agree with.
There are several statues that are not in keeping with the Civil Code.
There are several things I think that should be included that are not, ie, specifics on how the board is to dicipline a member, our rights to have the fee schedule, our right to veto a rule, the specifics of the open meeting act etc etc etc. There is very little in there about 'our rights'. There is very little in the CCR's that is 'spelled' out as far as our rights. It is very Board Biased. When I brought these issues to the attention of the one board member he said, "That's ok, we'll fix them later, we have to get them into the state."
When the State of California recieves the CCR's will it review them and catch what is missing/wrong? What exactly happens? |
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CookieB
(California)
Posts:19
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| 11/03/2011 3:21 PM |
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And as far as a fight...I don't want one. I would like to see this board read my letter and go, "Oh geeze, wow, look at this, we made a mistake, let's fix this right away!" and send out the proper voting forms. As I said, we are under 50 units. How long can a revote take/cost? That's what I'd like to see happen. An appropriate response. This is a no brainer.
PS: I just heard that the votes have been counted as they've been coming in. People have just been handing Mr. <> they ballots without them even being in the envelopes and the ones in evelopes have been opened. ::shakes head:: They community is doing so because they haven't been educated. The board as well, but ....I have been communicating and sending one board member copies of the Civil Code and we've discussed the Davis Sterling Act on several occassions. At this point there is no excuse for them NOT to know. Heck, I'm just a mere brand new owner of two weeks and I know more than they do????
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CarolR11
(California)
Posts:436
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| 11/03/2011 3:30 PM |
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Cookie, does your HOA have bylaws? Some of what you want in the CC&Rs may be in your bylaws. Do you have Rules & Regulations? Some of what you want to see about rules might be in there.
Somewhere near the front of your CC&Rs might be a list of your governing documents. If you have definitions of terms near the front of your CC&Rs, skim through them to see what they say..
Is it possible that you're missing some governing documents? |
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RichardP13
(California)
Posts:836
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| 11/03/2011 3:31 PM |
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Cookie
Being that you are 50 units, do you have a management compnay to help guide the Board? |
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TimB4
(Virginia)
Posts:3801
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| 11/03/2011 3:41 PM |
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Cookie,
Restating can be used to just combine past adopted amendments into a single document or can include additional amendments or a complete rewrite. It sounds like your Association is Restating the CC&Rs.
If there is a conflict between your CC&Rs and State law, typically State law controls (unless they defer to the governing document).
Had this been brought up prior to the vote, I would have suggested that you start a campaign in the development to vote against the proposed CC&RS. Specify the reasons why and a possible solution to do it properly (perhaps volunteering to head a committee to propose changes to the Board for a future membership vote). However, since the voting occurred, the only options left are:
1) challenge the procedures to the Board (as others have suggested)
2) challenge the amended document in court due to procedural issues
3) live with the new document
4) sell and move |
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CookieB
(California)
Posts:19
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| 11/03/2011 4:30 PM |
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Carol: Re Bylaws/Rules and Regs: Yes, our HOA has them. I spent hours comparing them to the Davis Sterling Act. Some are outdated, the time lines etc. Some are missing specfic laws etc. Some of the defintions etc are missing. And as far as other docs missing, I'm not sure what all our state requires so I'm not sure.
Richard: No, we manage our own association. They don't want to have to pay a mgmt company--rumors of expensive costs and no one around to help out that lives on the premises etc.
Tim: Sounds like our association doesn't know that it's Restating the CCR's as it's title page says it's ammending them! I was moving in right as the voting packet was being passed out so there was no time to rally the troops (most of which are which about 70 y/o) and that also eliminates the moving out option! I'll use what tools available like the 'special meeting' to veto rules, if appropriate to the community and the open meetings to get wording and clarifications of the CCR's made. I'm learning and hope to keep learning! Hopefully this community will learn too.
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JeffR7
(California)
Posts:245
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| 11/03/2011 6:10 PM |
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Cookie, if they are recording the entire package they are restating, not amending.
An amendment would say something like this "This is an amendment number X to CC&Rs recorded on such and such date"
Since they are recording the whole thing, they are not amending it they are restating the whole package.
The state will not read your documents and will not know what's inside. They will keep a copy and basically give you a certificate that such and such document was recorded by them on such and such date.
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CookieB
(California)
Posts:19
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| 11/04/2011 8:40 AM |
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They will not look at them to see if they are correct? OMGosh! So there is no oversite of anykind?
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EllieD
(Vermont)
Posts:173
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| 11/04/2011 10:03 AM |
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CookieB,
Was there an attorney involved? Perhaps “attorney review” is what is missing.
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RogerB
(Colorado)
Posts:4686
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| 11/04/2011 10:15 AM |
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Jeff, I believe your post is not totally accurate regarding completely restated CC&Rs.
We have filed many completely rewritten CC&Rs. They are always referred to as "Amended and Restated" CC&Rs. They are an amendment even when they are totally restated; and they always make reference to the original CC&Rs. |
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