How to fix election

We recently had the annual election for board of directors. Our documents do not say exactly how the process of getting a slate of candidates is to be done. There is no state law (that I can find) that says anything about it. We haven't adopted Robert's Rules. The only thing that was done was a notice was sent to each homeowner stating that if they wanted to have their name on the ballot, they must respond to the management company (address given) by Friday at 6:30pm. There are 7 open positions. Four people apparently got their information in and were put on the ballot. We must allow absentee ballots so the ballots were sent out with the four people on the ballot. At the annual meeting several other people were nominated from the floor. Seven people were elected which included the four people from the ballot. All seems ok.

One of the elected board members who were part of the 4 on the ballot has since told several homeowners that he couldn't really decide if he wanted to put his name in the pot and waited until the end of the deadline for consideration (Friday at 6:30pm). For some reason, he then decided he did want to run and sent in his name to the management company. The result (who did what is unknown) was the he was placed on the ballot and got elected even though he failed to comply with the rule of when the closing time was to be placed on the ballot.

So, now we have a homeowner as a board member who was elected without following the rules of the nomination process.

What do we do? Do we have to have a new election? The board member can't just resign as they were not fairly elected in the first place. What happens to any action the board takes with an invalid board member? Is if fair to just take the next highest vote getter?

How would you suggest we proceed?

Bruce, I will wait for other comments before I respond to the first part. However, absentee voting is required by law. There is no choice so it is not debatable. The four people who were on the ballot got the most votes since the majority of the votes came from the absentee votes. Had the person not been on the ballot there is a likelihood they would not have gotten elected. Who knows?

Even though this digresses from the question I posed, Arizona has banned proxies. We are required to use absentee ballots. That is not the issue of the question.

RobertG: IMO, there doesn't seem to be a problem. You had 7 open Board positions and 4 got their nomination in by the deadline; that left 3 open positions with no candidates as of Friday, 6:30pm. At the actual meeting, several other people were nominated from the floor and the 7 open positions were filled.

You state one nominee was 'put on' the ballot though he waited until the last minute. Whoever put him on the ballot made the decision to accept his nomination even though it was past the deadline; however it was in enough time for someone to actually include him with the rest of the nominees. The person who was in charge of receiving the nominations and preparing the ballots is the person in question, not the nominee. He was a nominee, he was put on the ballot along with the others, was voted upon and was elected to a seat on the Board.

Perhaps you would want to direct your energy to a review of the nomination process, and establish controls in place with those who are in charge of the
next election to avoid problems. You are fortunate to have had willing candidates to fill 7 seats on the Board. Move on from here; good luck!

RobertG,

Just a suggestion. If you have trouble finding people to fill your vacancies on the board, why not amend your bylaws to have a nominating committee? If your state laws don't forbid you from doing this, maybe you can do it that way. Normal parliamentary procedure, though, says that the president shouldn't be a member of the nominating committee. So, be careful if you go this route to avoid doing that.

The nominating committee finds enough people who are willing to serve so that, at least, all of the vacancies are filled, and then comes up with a "slate" of candidates. At the annual meeting, the chairperson of the nominating committee then presents the slate of candidates and moves that the slate be accepted. Once that is done, you open nominations from the floor. This gives everyone a chance to be nominated, if they want, and you are certain of at least having enough people to fill all the vacancies. After nominations are closed, you then vote as normal on the candidates. It's a fair way of doing things if you have trouble filling vacancies

Many organizations (not necessarily HOAs) fill their board vacancies this way. If it's allowed under your laws and documents, you might think about doing it this way.

Robert - I thnk you have a bigger problem than stated. How could you elect floor nominated board members? ARS 33-1812 states:
"1. The absentee ballot shall set forth each proposed action.

2. The absentee ballot shall provide an opportunity to vote for or against each proposed action."

Obviously the floor nominated people were not on the absentee ballot. So electing them by those in attendance disenfranchises those not in attendance. It also precludes any floor action requiring members' vote. Check with your legal council for guidance.

I think most people would agree with the unfairness of the absentee ballot method, but we are stuck with it. I think you have an interesting point in that #2 above implies that the ballot should be limited to only what is on the written ballot and negates the idea of write-ins. I will do some research on that point. However, that doesn't quite help the problem at hand. In fact, it might make it even worse since #2 might invalidate the 3 other people who were nominated from the floor.

Sounds like some legal person is going to make some money off this problem. Or, we can all call it a day and think we are better off and let it ride.

Why do you think I am asking for other people's opinions? I don't want to call it a day, but I don't know what to suggest to resolve the current issue. The future is different, but I agree with you on the risk.

Robert - We had a similar scenario where the some candidates bailed out at the last minute and others were added, so on the advice of the HOA attorney we mailed out new ballots, new proxies and just had another, second election. Old proxies were considered valid unless replaced with a new proxies with a later date. "RE-DO"...... It worked out ok.

We even had people at the meeting that were sneaking out and then back in ... on their way back in, they tried to submit another ballot. What are they thinking?

"If there were a large enough number of people present in person and the person that didn't meet the requirements was chosen by them, you may not have much, if any ground to stand on."
Not so Gerald. I would suspect that even if the entire membership was in attendance, the fact those floor nominated bodies were not on the absentee ballot, would preclude them from being elected.
Why would you send a letter to the MC and tip your hand? This board seems to be doing whatever it wants to do. If truly interested in solving this, I would file directly with the Arizona OAH judge. You don't need to "inform" anyone beforehand that you are doing so either. Then they can defend their position, and let the judge decide if they are in violation of Arizona statutes.

HaroldS - You may wish to escalate matters without first trying to resolve them internally. I disagree with that method. My comment is that the numbers of those present, may outweigh those voting by absentee ballot. Those voting by absentee ballot only know who is running, not who isn't. An important question is how many votes did the candidate (who was added after the deadline) get from absentee ballots and ballots cast at the meeting. It is very important in pursuing the matter because if the votes of those in attendance would not have had an impact on the absentee ballots, what leg does anyone really have to stand on in pursuing the matter legally? Other than a procedural flaw which I agree there was one, or more for that matter. RobertG, and or a group of owners must get a count of all the votes and how those votes were derived before pursuing the matter towards a legal end.

RobertG - Just curious, how many units/dwellings are in your community? How many votes is each unit/dwelling permitted to cast? One vote each?

"My comment is that the numbers of those present, may outweigh those voting by absentee ballot." And what bearing does this have on the Arizona law? It doesn't say, "unless there are more present than voted by absentee ballot."
The fact remains seven were "elected" of which three came from illegal floor nominations. By law, only the four who were on the absentee ballot should be considered elected. If one of the four did not comply with the documents, then he should be disqualified. To seat those other three is inviting a lawsuit.
I'm not sure what good going thru "channels" would be either, since Robert suggested that some suspect the MC as being the problem. And if the board is allowing the MC to wag the dog, then they would be useless to contact also.

To answer the last question, yes, mail-ins, floor nominations and write-ins all counted.

RobertG: You have presented your situation thoroughly and have received many responses with varied points of view. Let's recap the important points:
- 7 open Board positions
- 7 nominees, 4(only) listed on ballot; 3 nominated from the floor

You have a mgmt. company who made the decision to allow a nominee, though he was late, to be included on a ballot which was being used as an absentee ballot for those who were not attending the meeting.
Further, at the meeting, 3-nominations from the floor were accepted which allowed a total of 7 nominees to fill 7 seats on the Board.

IF there had been more nominees than were needed to fill 7 seats, I could understand your concern over the lateness of the nominee getting on the ballot. But, he Did Get on the Ballot! and he didn't boot any other nominee off in the process.

It was the 'process' by which his name was included that was not handled
according to the pre-determined guidelines (by mgmt. company??)--these were guidelines only, not official dictates from your docs. The late nominee received the most number of votes; you have the correct number of seats filled. Work on getting your processes organized and communicated correctly. Your Board will have their hands full with all of them being new to the task.

That is not correct. There were 6 nominated from the floor. 3 people did not get elected (if I did my math correctly).

Robert, someone has already touched on this (Harold?), and that is that while you claim your documents aren't exactly clear on the nomination process, you did say that the process was to obtain names before a set date and time, after which the nominations would be closed and then ballots sent out, to allow for absentee voting.

I tend to agree then, that in no case should any nominations from the floor have been accepted. Any that were, and voted on, and are now seated as board members, should be voided.

We would not only not be able to accept nominations at the meeting, but we wouldn't be able to accept any VOTES submitted at that meeting:

Per our bylaws:

"Notifications that nominations are being accepted shall be mailed to members of the Residents on or before the first Monday of January. Nominations shall be returned to the principal office of the Residents Association postmarked no later than the third Monday of January.

Ballots shall be mailed to members of the Residents Association by February 1. Marked ballots shall be returned to the principal office of the Residents Association postmarked no later than February 21. Ballots will remain sealed and will be counted at the annual meeting of the Residents Association on the first Monday in March."

So if you don't get your nomination in by the 3rd Monday of January, or your vote on the ballot by February 21, then you can't be nominated and you can't vote.

It is actually chapter 18, no 16 exists. Yes, I am familiar with all of these quite well. I am just trying to find something more than my opinion to back the statement that the floor nominations are invalid. Just imagine the cry at the board meeting when I bring this up.

RobertG: My mistake; I neglected to understand there were more candidates nominated than were necessary to fill the 7 positions.

You are left with very few options. You can allow the election to stand; OR, the Board can declare this election INVALID due to "events which occurred beyond the Board's control" and hold a new election at a Special Meeting called for this purpose. Communicate the Special Meeting notice with a NEW absentee ballot including ALL candidates--those previously nominated from the floor and the 4 on the first ballot. Of course, this is after these nominees are consulted and agree to the process and if they want to stay as a nominee in a new election.

IMO, IF #2 is chosen, you will be setting yourself up for new problems. At the very least, the membership will be buzzing, they will lose confidence in those in authority--the Board and Mgmt. Co.--and it will take a lot to gain the ground you loose in the process. Further, you will need to revisit those candidates who were nominated from the floor and if that was valid in view of the use of an absentee ballot. Also, any decisions which have been made during the time of the 7-newly elected B-members, must be revisited and dealt with. A lot of red tape to work through. Not worth it for one candidate who was labeled 'late' in putting his name in BUT he put his name in, and was not nominated from the floor which may be illegal at this point.

RobertG,

Well, you wanted more opinions. Now you have two pages worth, and it keeps growing.

I think, by now, we can see that there are two issues:

#1. What to do about the present election; let stand; have a reelection; or something in between (allow the election of some board members to stand, declare all others invalid).

#2. How to prevent such an occurrence in the future.

I believe someone else has already said there are two parts to the problem.

IMO, the answer to #2 is the easiest. You need to look a the law carefully, and revise your bylaws to make sure elections are held in accordance with the law, and that your procedures are clearly stated.

I believe I understand the situation better than I did, and I have had a chance to look at Title 33 for Arizona.

Referring to the part of the law that reads:
1. The absentee ballot shall set forth each proposed action.
2. The absentee ballot shall provide an opportunity to vote for or against each proposed action.
3. The absentee ballot is valid for only one specified election or meeting of the members and expires automatically after the completion of the election or meeting.

In #1 I take "action" to mean any question on the ballot, which could be a question on the budget, or a the choice of a candidate or candidates for election to the board, or whatever.

In #2 the "opportunity to vote for or against each proposed action" could then mean a vote for or against a candidate for election to the board.

In #3 the phrases "only one specified election or meeting" and "after completion of the election or meeting" clearly indicates, at least to me, that elections may be on the absentee ballot.

I think we all know, from our personal experience, that the ballot used on election day is identical to the ballot used for the absentee ballot. There are no new questions or candidates that appear on the "election day ballot" that were not on the absentee ballot.

I think is is also clear that if names appear on the "election day ballot" (the annual meeting) that were not on the "absentee ballot", it is unfair to absentee voters because they were denied the opportunity to vote for these candidates.

From all of the foregoing, I conclude that the "election day ballot" (the one used at the annual meeting) MUST BE IDENTICAL to the absentee ballot. I don't believe your lawmakers intended it to be otherwise, and thus I conclude that nominations from the floor ARE NOT ALLOWED.

As to the first problem, the present election, I don't think the "legal" issue is the last-minute person whose name appeared on the ballot, since that name appeared on both the absentee ballot and the "election day ballot." That may have been a violation of your "procedure", but if that procedure is not stated in the bylaws, I don't see what you can do about it.

The problem I see is that the people who were nominated from the floor were not done according to the law, and so THEIR election is invalid.

As others have already pointed out, if you have board members whose election may be declared invalid, then you probably don't have a valid board at all.

I think the only way to correct this situation is to declare the entire election invalid and start over, doing it right this time. Knowing what you now know, you should be able to simply place all of the candidates names (how many was it, 10 total?) on the ballot, have no nominations from the floor, and have the absentee and election day (meeting) ballots be identical, as it should have been. Doesn't this solve the problem?

RobertG - I think the way you state your concerns will net you the most gain. You can and should state for the record how you feel and that going forward you feel that the Board and Management should follow the laws and adhere to them, to the letter.

However, did the action of taking nominations from the floor appear on the absentee ballot, and or on an agenda duly noticed to your association?

Here is what I plan on saying:

"I apologize for having to bring this up. I just want to be sure the HOA doesn’t allow the following issues to come up next year. It has been made known to me, and I hope this is wrong, that one of the people on the ballot elected to board actually submitted their name after the deadline for nominations. More importantly, Arizona law defining the use of absentee ballots does not allow nominations from the floor during an election. We are concerned these actions may place the HOA at risk for someone taking action for invalid election results. This places the Board in danger of having decisions made voided due to improperly elected directors. We hope that proper controls will be put in place for the next election to prevent similar problems."

Then if anyone else wants to follow up and do or say anything, that is up to others.

RobertG - Some friendly comments to what you plan on saying: You must first obtain the floor to address those present. Don't apologize. State that for the record you want to briefly, and respectfully speak about the procedures that were utilized for the previous election proceedings and your concern for the protection of the entire association. If you are going to say, "We are concerned" than state who "We" is. Sight the Arizona law that you are basing your viewpoints upon. Sight that by a candidate's own admission his submission for candidacy was late and you feel that his placement upon the absentee ballot provided an unfair advantage to the 3 candidates who did not get elected. Additionally that the practice of nominations from the floor is not in accordance with Arizona Title 33 Chapter 16, and provide the sighting. You, or "We" believe that due to these procedures the Board was not properly constituted and make a request that x, y, z occur. In other words, be more succinct, strong in your presentation, make a request that x, y, z occur and then stop speaking and let the reaction, or stunned silence be addressed. Stick to your guns and if necessary just repeat what you said previously.

Now, as far as the ballot itself, I strongly recommend you attach it to your records as well as all corroborating materials.

You wrote there was a place after the 4 candidates' name for a place to put your own candidate, i.e. several write in slots open. How do you know if those that voted by absentee ballot didn't write in anyone's name in those slots? I'd be interested to see if any of the apprx. 90 absentee ballots had write-ins for any of those nominated from the floor, or otherwise and a tally of each.

What I'm getting at with all these what if's is that the election represents the will of the people. Those 140 out of 800 who chose to partake saw that there was the opportunity for write-ins, and received an agenda that permitted nominations from the floor.

RobertG - I Agree with MichelleD that floor nominations should come first in your address. Excellent advise Michelle. : )

Harold, just for the record, homeowners are allowed to speak, within limits, when a motion has been made. However, there isn't any motion expected on this topic so the only time allowed to speak on something that isn't on the agenda is during homeowner comments. Having them at the end does not violate any laws as long as time is given on each specific motion for matters that pertain to that motion.

As far as replacing the MC, we have been through 3 MC companies in 2 years. Even though I agree, I sure don't want to go through it again right now.