Get 1 year of free community web site hosting from Community123.com!
Monday, October 18, 2021











HOATalk is a free service of Community123.com:

Easy to use website tools to help your board
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: Proxy votes
Prev Next
Please login to post a reply (click Member Login on the menu).
Page 2 of 2 << < 12
Author Messages
RichardP13


Posts:0


11/25/2009 2:06 PM  
Our meetings have been run by the PM for some time now. I realize that there is some effort that needs to go into becoming a knowledgeable board member, but for none of them to go that extra step.
MaryA1


Posts:0


11/25/2009 2:42 PM  
Richard,

Are you certain the electioneering laws apply to HOAs? I don't recall seeing anything about that in the Davis-Stirling Act. I would think they only apply to public bodies.

I agree with Roger in that the PM should not be running your meetings, whether it be a board meeting or the annual meeting of members. The Pres of the HOA should chair ALL meetings of the assn. The PM may be present to answer any questions, but that's all. Also why would the PM have to recommend or bestow his blessings on any appointments to the board? I'm beginning to wonder what else the PM is doing that the BOD should be doing.

As for the attorney, unless you have a big lawsuit going on and he is needed to answer questions, his presence shouldn't be required at any meetings of the assn. In fact, the only thing he should be used for is to answer legal questions regarding lawsuits, state laws and the gov docs. Also, he may be involved in collecting delinquent assessments.
RichardP13


Posts:0


11/25/2009 3:07 PM  
Posted By MaryA1 on 11/25/2009 2:42 PM
Richard,

Are you certain the electioneering laws apply to HOAs? I don't recall seeing anything about that in the Davis-Stirling Act. I would think they only apply to public bodies.

I agree with Roger in that the PM should not be running your meetings, whether it be a board meeting or the annual meeting of members. The Pres of the HOA should chair ALL meetings of the assn. The PM may be present to answer any questions, but that's all. Also why would the PM have to recommend or bestow his blessings on any appointments to the board? I'm beginning to wonder what else the PM is doing that the BOD should be doing.

As for the attorney, unless you have a big lawsuit going on and he is needed to answer questions, his presence shouldn't be required at any meetings of the assn. In fact, the only thing he should be used for is to answer legal questions regarding lawsuits, state laws and the gov docs. Also, he may be involved in collecting delinquent assessments.




Below is from the Davis-Stirling site in reference to electioneering. I don't know why legal counsel was there either, unless to invalidate the election, which is seems to make sense why she was there. The PM had allowed other HOA's in their portfolio to vote to adjourn to another meeting, based on the provisions of their by-laws. The reason to bestow their blessing on the appointments is so the PM doesn't get fired, just like I will do with our present one.


Electioneering
California's Election Code prohibits persons from soliciting votes or electioneering at any time a voter may be casting a ballot. This does not pertain to normal campaign activities, such as mailers, campaign speeches, and the like.
"No candidate or representative of a candidate, and no proponent, opponent, or representative of a proponent or opponent, of an initiative, referendum, or recall measure, or of a charter amendment, shall solicit the vote of an absentee voter, or do any electioneering, while in the residence or in the immediate presence of the voter, and during the time he or she knows the absentee voter is voting." Elections Code §18371(a). See more about ballot solicitation.

GlenL
(Ohio)

Posts:5491


11/26/2009 3:10 AM  
Richard the actual code is: (bold by me)

California Elections Code §18371. Electioneering Disallowed

(a) No candidate or representative of a candidate, and no proponent, opponent, or representative of a proponent or opponent, of an initiative, referendum, or recall measure, or of a charter amendment, shall solicit the vote of an absentee voter, or do any electioneering, while in the residence or in the immediate presence of the voter, and during the time he or she knows the absentee voter is voting.

(b) Any person who knowingly violates this section is guilty of a misdemeanor.

(c) This section shall not be construed to conflict with any provision of the federal Voting Rights Act of 1965, as amended, nor to preclude electioneering by mail or telephone or in public places, except as prohibited by Section 18370, or by any other provision of law.

Also if they don't hold the annual meeting within fifteen months of the formation of the corporation or the last annual meeting held the H/O's have the right to petition the superior court to force the BOD to hold the meeting and can reduce the required quorum.

Corporations Code §7510. Place, Date and Time; Failure to Hold Meetings; Quorum; Special Meetings

(a) Meetings of members may be held at a place within or without this state as may be stated in or fixed in accordance with the bylaws. If no other place is stated or so fixed, meetings of members shall be held at the principal executive office of the corporation. Unless prohibited by the bylaws of the corporation, if authorized by the board of directors in its sole discretion, and subject to the requirement of consent in clause (b) of Section 20 and those guidelines and procedures as the board of directors may adopt, members not physically present in person (or, if proxies are allowed, by proxy) at a meeting of members may, by electronic transmission by and to the corporation (Sections 20 and 21) or by electronic video screen communication, participate in a meeting of members, be deemed present in person (or, if proxies are allowed, by proxy), and vote at a meeting of members whether that meeting is to be held at a designated place or in whole or in part by means of electronic transmission by and to the corporation or by electronic video screen communication, in accordance with subdivision (f).

(b) A regular meeting of members shall be held on a date and time, and with the frequency stated in or fixed in accordance with the bylaws, but in any event in each year in which directors are to be elected at that meeting for the purpose of conducting such election, and to transact any other proper business which may be brought before the meeting.

(c) If a corporation with members is required by subdivision (b) to hold a regular meeting and fails to hold the regular meeting for a period of 60 days after the date designated therefor or, if no date has been designated, for a period of 15 months after the formation of the corporation or after its last regular meeting, or if the corporation fails to hold a written ballot for a period of 60 days after the date designated therefor, then the superior court of the proper county may summarily order the meeting to be held or the ballot to be conducted upon the application of a member or the Attorney General, after notice to the corporation giving it an opportunity to be heard.

(d) The votes represented, either in person (or, if proxies are allowed, by proxy), at a meeting called or by written ballot ordered pursuant to subdivision (c), and entitled to be cast on the business to be transacted shall constitute a quorum, notwithstanding any provision of the articles or bylaws or in this part to the contrary. The court may issue such orders as may be appropriate including, without limitation, orders designating the time and place of the meeting, the record date for determination of members entitled to vote, and the form of notice of the meeting.

(e) Special meetings of members for any lawful purpose may be called by the board, the chairman of the board, the president, or such other persons, if any, as are specified in the bylaws. In addition, special meetings of members for any lawful purpose may be called by 5 percent or more of the members.

(f) A meeting of the members may be conducted, in whole or in part, by electronic transmission by and to the corporation or by electronic video screen communication (1) if the corporation implements reasonable measures to provide members in person (or, if proxies are allowed, by proxy) a reasonable opportunity to participate in the meeting and to vote on matters submitted to the members, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with those proceedings, and (2) if any member votes or takes other action at the meeting by means of electronic transmission to the corporation or electronic video screen communication, a record of that vote or action is maintained by the corporation. Any request by a corporation to a member pursuant to clause (b) of Section 20 for consent to conduct a meeting of members by electronic transmission by and to the corporation, shall include a notice that absent consent of the member pursuant to clause (b) of Section 20, the meeting shall be held at a physical location in accordance with subdivision (a).

Studies show that 5 out of 4 people have problems with fractions
RobertR1
(South Carolina)

Posts:5164


11/26/2009 4:49 AM  
Glen,
You scare me. I don't know how you can keep coming up with this type information. I am glad you are in the tent posting out, than outside the tent posting in. Next time I disagree with you, remind me of this.
As all this pertains to knocking on someone's door and asking for a vote on the association council; give us your read of what can be done in CA, and speculate about the rest of the country, if you don't mind.
GlenL
(Ohio)

Posts:5491


11/26/2009 5:37 AM  
Robert thank you but the simple answer is I have way too much time on my hands. The sections I posted are only for CA and I don't think any other states have anything near these regulations. I'm not an attorney but in my opinion you can knock on the door and ask to speak to the H/O as long as you do not enter the home and you ascertain that they are not currently in the process of voting. The HOA has to mail the ballots out thirty days before an election so to be on the safe side a candidate could spend the weeks before that 30 day time period campaigning and follow it up with a postcard or phone call during the 30 day period.

Studies show that 5 out of 4 people have problems with fractions
MaryA1


Posts:0


11/26/2009 7:01 AM  
I hate to burst any bubbles, but I really think the CA Election Code only applies to public bodies. If you take a look at the Table of Contents of the Election Code you will notice that nowhere does it state "HOA elections". There are State, COunty, Municipal, Distric, School Dist elections. There are sections for all the political parties; sections for voter registration, etc., etc. There is nothing in the whole code that applies to HOAs. Following is the intro from the code. Read it and I think you will agree that the code does NOT apply to HOAs. I've worked at the polls and I know there are laws prohibiting this in AZ and I would venture to say every state has the same type laws.
--------------

ELECTIONS CODE
SECTION 1-17

1. This act shall be known as the Elections Code.

2. The provisions of this code, insofar as they are substantially
the same as existing statutory provisions relating to the same
subject matter, shall be construed as restatements and continuations,
and not as new enactments.

3. If any provision of this code or the application thereof to any
person or circumstance is held invalid, the remainder of the code and
the application of that provision to other persons or circumstances
shall not be affected thereby.

4. Unless the provision or the context otherwise requires, these
general provisions, rules of construction, and definitions shall
govern the construction of this code.

5. Division, part, chapter, article, and section headings do not in
any manner affect the scope, meaning, or intent of this code.

6. Whenever a power is granted to, or a duty is imposed upon, a
public officer, the power may be exercised or the duty may be
performed by a deputy of the officer or by a person authorized,
pursuant to law, by the officer, unless this code expressly provides
otherwise.

7. Writing includes any form of recorded message capable of
comprehension by ordinary visual means. Whenever any notice,
report, statement or record is required or authorized by this code,
it shall be made in writing in the English language unless it is
expressly provided otherwise.

8. As used in this code, the present tense includes the past and
future tenses, and the future the present; the masculine gender
includes the feminine; and the singular includes the plural, and the
plural, the singular.

9. (a) Counting of words, for purposes of this code, shall be as
follows:
(1) Punctuation is not counted.
(2) Each word shall be counted as one word except as specified in
this section.
(3) All geographical names shall be considered as one word; for
example, "City and County of San Francisco" shall be counted as one
word.
(4) Each abbreviation for a word, phrase, or expression shall be
counted as one word.
(5) Hyphenated words that appear in any generally available
standard reference dictionary, published in the United States at any
time within the 10 calendar years immediately preceding the election
for which the words are counted, shall be considered as one word.
Each part of all other hyphenated words shall be counted as a
separate word.
(6) Dates consisting of a combination of words and digits shall be
counted as two words. Dates consisting only of a combination of
digits shall be counted as one word.
(7) Any number consisting of a digit or digits shall be considered
as one word. Any number which is spelled, such as "one," shall be
considered as a separate word or words. "One" shall be counted as
one word whereas "one hundred" shall be counted as two words. "100"
shall be counted as one word.
(8) Telephone numbers shall be counted as one word.
(9) Internet web site addresses shall be counted as one word.
(b) This section shall not apply to counting words for ballot
designations under Section 13107.

10. The Secretary of State is the chief elections officer of the
state, and has the powers and duties specified in Section 12172.5 of
the Government Code.

11. On written call of the Secretary of State, the county elections
officials, city elections officials, and registrars of voters of
this state may meet with the approval of their legislative bodies, at
the time and place within this state designated in the call, to
discuss matters affecting the administration of the election laws and
to promote uniformity of procedure in those matters. Meetings
shall not exceed three in any calendar year. Any deputy of a county
elections official, city elections official, or registrar of voters,
designated for the purpose by his or her principal, may attend these
meetings, alone or with his or her principal. The actual and
necessary expenses of the county elections official, city elections
official, or registrar of voters, and of a deputy, incurred in
traveling to and from meetings and in attending the same, for each
officer for any one meeting, shall be a charge of the county or city
of the elections official or registrar, and payable as other county
or city charges.

12. Whenever any candidate files a declaration of candidacy,
nomination paper, or any other paper evidencing an intention to be a
candidate for any public office at any election in this state with
either the Secretary of State or a county elections official, the
candidate shall by the filing irrevocably appoint the Secretary of
State or the county elections official with whom the filing is made,
and their successors in office, the candidate's attorneys upon whom
all process in any action or proceeding against him or her concerning
his or her candidacy or the election laws may be served with the
same effect as if the candidate had been lawfully served with
process. The appointment shall continue until the day of the
election.
If in any action or proceeding arising out of or in connection
with any matters concerning his or her candidacy or the election laws
it is shown by affidavit to the satisfaction of a court or judge
that personal service of process against the candidate cannot be made
with the exercise of due diligence, the court or judge may make an
order that the service be made upon the candidate by delivering by
hand to the Secretary of State or the county elections official
appointed as the candidate's attorney for service of process, or to
any person employed in his or her office in the capacity of assistant
or deputy, one copy of the process for the defendant to be served,
together with a copy of the order authorizing the service. Service
in this manner constitutes personal service upon the candidate. The
Secretary of State and the county elections officials of all
counties shall keep a record of all process served upon them under
this section, and shall record therein the time of service and their
action with reference thereto.
Upon the receipt of service of process the Secretary of State or
the county elections official shall immediately give notice of the
service of the process to the candidate by forwarding the copy of the
process to the candidate at the address shown on his or her
declaration, nomination paper, affidavit, or other evidence of
intention to be a candidate filed with that officer, by special
delivery registered mail with request for return receipt.

13. (a) No person shall be considered a legally qualified candidate
for any office or party nomination for a partisan office under the
laws of this state unless that person has filed a declaration of
candidacy or statement of write-in candidacy with the proper official
for the particular election or primary, or is entitled to have his
or her name placed on a general election ballot by reason of having
been nominated at a primary election, or having been selected to fill
a vacancy on the general election ballot as provided in Section
8806, or having been selected as an independent candidate pursuant to
Section 8304.
(b) Nothing in this section shall be construed as preventing or
prohibiting any qualified voter of this state from casting a ballot
for any person by writing the name of that person on the ballot, or
from having that ballot counted or tabulated, nor shall any provision
of this section be construed as preventing or prohibiting any person
from standing or campaigning for any elective office by means of a
"write-in" campaign. However, nothing in this section shall be
construed as an exception to the requirements of Section 15341.
(c) It is the intent of the Legislature, in enacting this section,
to enable the Federal Communications Commission to determine who is
a "legally qualified candidate" in this state for the purposes of
administering Section 315 of Title 47 of the United States Code.

13.5. (a) (1) Notwithstanding subdivision (a) of Section 13, no
person shall be considered a legally qualified candidate for any of
the offices set forth in subdivision (b) unless that person has filed
a declaration of candidacy, nomination papers, or statement of
write-in candidacy, accompanied by documentation, including, but not
necessarily limited to, certificates, declarations under penalty of
perjury, diplomas, or official correspondence, sufficient to
establish, in the determination of the official with whom the
declaration or statement is filed, that the person meets each
qualification established for service in that office by the provision
referenced in subdivision (b).
(2) The provision of "documentation," for purposes of compliance
with the requirements of paragraph (1), may include the submission of
either an original, as defined in Section 255 of the Evidence Code,
or a duplicate, as defined in Section 260 of the Evidence Code.
(b) This section shall be applicable to the following offices and
qualifications therefor:
(1) For the office of county auditor, the qualifications set forth
in Sections 26945 and 26946 of the Government Code.
(2) For the office of county district attorney, the qualifications
set forth in Sections 24001 and 24002 of the Government Code.
(3) For the office of county sheriff, the qualifications set forth
in Section 24004.3 of the Government Code.
(4) For the office of county superintendent of schools, the
qualifications set forth in Sections 1205 to 1208, inclusive, of the
Education Code.
(5) For the office of judge of the superior court, the
qualifications set forth in Section 15 of Article VI of the
California Constitution.
(6) For the office of county treasurer, county tax collector, or
county treasurer-tax collector, the qualifications set forth in
Section 27000.7 of the Government Code, provided that the board of
supervisors has adopted the provisions of that section pursuant to
Section 27000.6 of the Government Code.

14. In case of a disaster in which a portion or all of the voting
records of any county are destroyed, the Governor may appoint an
election commission to outline and recommend procedures to be
followed in the conduct of regular or special elections. The
commission shall consist of the Governor, the Secretary of State, the
Attorney General, and the county elections official of each county
in which destruction occurs.

15. Notwithstanding any other provision of law, if the last day for
the performance of any act provided for or required by this code
shall be a holiday, as defined in Chapter 7 (commencing with Section
6700) of Division 7 of Title 1 of the Government Code, the act may be
performed upon the next business day with the same effect as if it
had been performed upon the day appointed.
For purposes of this section, the Friday in November immediately
after Thanksgiving Day shall be considered a holiday.

16. A copy of Section 84305 of the Government Code shall be
provided by the elections official to each candidate or his or her
agent at the time of filing the declaration of candidacy and to the
proponents of a local initiative or referendum at the time of filing
the petitions.

17. The Secretary of State shall establish and maintain
administrative complaint procedures, pursuant to the requirements of
the Help America Vote Act of 2002 (42 U.S.C. Sec. 15512), in order to
remedy grievances in the administration of elections. The Secretary
of State may not require that the administrative remedies provided
in the complaint procedures established pursuant to this section be
exhausted in order to pursue any other remedies provided by state or
federal law.

GlenL
(Ohio)

Posts:5491


11/26/2009 7:30 AM  
Mary normally I would agree but this is from the davis-stirling.com website:

Fair Elections. The Davis-Stirling Act requires associations to a use a secret balloting system and use as a model the same procedures used by California counties for ensuring the confidentiality of the balloting process. Civil Code §1363.03(e). Therefore, it is instructive to find out what California election laws say about absentee ballots.

Electioneering. Persons may conduct normal campaign activities such as mailers, campaign speeches, door to door solicitations, and the like. What the Election Code prohibits is soliciting votes or electioneering at any time a voter may be casting a ballot.

No candidate or representative of a candidate, and no proponent, opponent, or representative of a proponent or opponent, of an initiative, referendum, or recall measure, or of a charter amendment, shall solicit the vote of an absentee voter, or do any electioneering, while in the residence or in the immediate presence of the voter, and during the time he or she knows the absentee voter is voting. Elections Code §18371(a).

As provided for in the Election Code, any solicitation or attempt to influence a voter under these sections is guilty of a misdemeanor. The same rules against solicitation and electioneering should apply to associations so that members can vote without intimidation or undue influence.

Diverting Ballots. Homeowners campaigning for or against special assessments, election of directors, removal of directors, or the like cannot induce owners to divert ballots away from the Inspectors of Election. Both the Election Code and the Davis-Stirling Act require that voters either mail or deliver their ballots in person to election officials. Elections Code §3017, Civil Code §1363.03(e)(2). Alternatively, a voter may vote an absentee ballot in person on the day of the election before the close of the polls. Elections Code §3018. The voter must vote the ballot either in the presence of an election official, or in a voting booth at the official's discretion, "but in no case may his or her vote be observed." The same standards apply to association elections (see more about absentee voting).

Exception for Illness. If voters are unable to return the ballot due to an illness or other physical disability, they may designate another person to return the ballot for them. Elections Code §3017. However, the statute specifically limits the acceptable group of eligible persons to family (spouse, child, parent, grandchild, brother, or sister,) or a person residing in that household.

Studies show that 5 out of 4 people have problems with fractions
MaryA1


Posts:0


11/26/2009 7:59 AM  
Glen,

I was ready to say "touche", but then I took a look at 1363.03 and can't find where it says the CA electioneering laws apply to HOA. The statute is only concerened with confidentiality; there is no mention of electionering. This version is dated July '06. Is what you're looking at a later version? I've posted it below:

----------

The Davis-Stirling Act
1363.03 . Elections and Meetings.

(a) An association shall adopt rules, in accordance with the procedures prescribed by Article 4 (commencing with Section 1357.100) of Chapter 2, that do all of the following:

(1) Ensure that if any candidate or member advocating a point of view is provided access to association media, newsletters, or Internet Web sites during a campaign, for purposes that are reasonably related to that election, equal access shall be provided to all candidates and members advocating a point of view, including those not endorsed by the board, for purposes that are reasonably related to the election. The association shall not edit or redact any content from these communications, but may include a statement specifying that the candidate or member, and not the association, is responsible for that content.

(2) Ensure access to the common area meeting space, if any exists, during a campaign, at no cost, to all candidates, including those who are not incumbents, and to all members advocating a point of view, including those not endorsed by the board, for purposes reasonably related to the election.

(3) Specify the qualifications for candidates for the board of directors and any other elected position, and procedures for the nomination of candidates. A nomination or election procedure shall not be deemed reasonable if it disallows any member of the association from nominating himself or herself for election to the board of directors.

(4) Specify the qualifications for voting, the voting power of each membership, the authenticity, validity, and effect of proxies, and the voting period for elections, including the times at which polls will open and close.

(5) Specify a method of selecting one or three independent third parties as inspector, or inspectors, of election utilizing one of the following methods:

(A) Appointment of the inspector or inspectors by the board.

(B) Election of the inspector or inspectors by the members of the association.

(C) Any other method for selecting the inspector or inspectors.

(b) Notwithstanding any other law or provision of the governing documents, an election within a common interest development regarding assessments, selection of members of the association board of directors, amendments to the governing documents, or the grant of exclusive use of common area property pursuant to Section 1363.07 shall be held by secret ballot in accordance with the procedures set forth in this section.

(c) (1) The association shall select an independent third party or parties as an inspector of election. The number of inspectors of election shall be one or three.

(2) For the purposes of this section, an independent third party includes, but is not limited to, a volunteer poll worker with the county registrar of voters, a licensee of the California Board of Accountancy, or a notary public. An independent third party may be a member of the association, but may not be a member of the board of directors or a candidate for the board of directors or related to a member of the board of directors or a candidate for the board of directors. An independent third party may not be a person who is currently employed or under contract to the association for any compensable services unless expressly authorized by rules of the association adopted pursuant to paragraph (5) of subdivision (a).

(3) The inspector or inspectors of election shall do all of the following:

(A) Determine the number of memberships entitled to vote and the

voting power of each.

(B) Determine the authenticity, validity, and effect of proxies, if any.

(C) Receive ballots.

(D) Hear and determine all challenges and questions in any way arising out of or in connection with the right to vote.

(E) Count and tabulate all votes.

(F) Determine when the polls shall close.

(G) Determine the result of the election.

(H) Perform any acts as may be proper to conduct the election with fairness to all members in accordance with this section and all applicable rules of the association regarding the conduct of the election that are not in conflict with this section.

(4) An inspector of election shall perform his or her duties impartially, in good faith, to the best of his or her ability, and as expeditiously as is practical. If there are three inspectors of election, the decision or act of a majority shall be effective in all respects as the decision or act of all. Any report made by the inspector or inspectors of election is prima facie evidence of the facts stated in the report.

(d) Any instruction given in a proxy issued for an election that directs the manner in which the proxy holder is to cast the vote shall be set forth on a separate page of the proxy that can be detached and given to the proxy holder to retain. The proxy holder shall cast the member's vote by secret ballot.

(e) Ballots and two preaddressed envelopes with instructions on how to return ballots shall be mailed by first-class mail or delivered by the association to every member not less than 30 days prior to the deadline for voting. In order to preserve confidentiality, a voter may not be identified by name, address, or lot, parcel, or unit number on the ballot. The association shall use as a model those procedures used by California counties for ensuring confidentiality of voter absentee ballots, including all of the following:

(1) The ballot itself is not signed by the voter, but is inserted into an envelope that is sealed. This envelope is inserted into a second envelope that is sealed. In the upper left hand corner of the second envelope, the voter prints and signs his or her name, address, and lot, or parcel, or unit number that entitles him or her to vote.

(2) The second envelope is addressed to the inspector or inspectors of election, who will be tallying the votes. The envelope may be mailed or delivered by hand to a location specified by the inspector or inspectors of election. The member may request a receipt for delivery.

(f) All votes shall be counted and tabulated by the inspector or inspectors of election in public at a properly noticed open meeting of the board of directors or members. Any candidate or other member of the association may witness the counting and tabulation of the votes. No person, including a member of the association or an employee of the management company, shall open or otherwise review any ballot prior to the time and place at which the ballots are counted and tabulated.

(g) The results of the election shall be promptly reported to the board of directors of the association and shall be recorded in the minutes of the next meeting of the board of directors and shall be available for review by members of the association. Within 15 days of the election, the board shall publicize the results of the election in a communication directed to all members.

(h) The sealed ballots at all times shall be in the custody of the inspector or inspectors of election or at a location designated by the inspector or inspectors until after the tabulation of the vote, at which time custody shall be transferred to the association.

(i) After tabulation, election ballots shall be stored by the association in a secure place for no less than one year after the date of the election. In the event of a recount or other challenge to the election process, the association shall, upon written request, make the ballots available for inspection and review by association members or their authorized representatives. Any recount shall be conducted in a manner that shall preserve the confidentiality of the vote.

(j) The provisions of this section apply to both incorporated and unincorporated associations, notwithstanding any contrary provision of the governing documents.

[This section become operative July 1 2006]
RichardP13


Posts:0


11/26/2009 8:47 AM  
I checked with an election chief with one of the cities. The election law refers to any election, local, state ,
federal, neighborhood council or an HOA election. I don't believe that legislators have both oars in the water when they write some of their bills and this being one of tghem.

The issue I have as do many others is the problem with trying to obtain quorum for these elections. If we apply the saem rules for a U.S. Senate race in California where there are 17.3. million registered voters as of Oct 2008. Take the same formula we use for HOA's and you would need 8,650,001 votes just to make it an election. The person challenging the incumbent could have a 70 to 30 lead in votes (if they were counted) and still not win because the election would be voided. True, they may (depending on legal opinion) have a second election when a smaller quorum is required.

The electioneering issue I have is just trying to get people to vote to reach the quorum so that the damn thing counts. I'm not sure how the state of Oregon handles this as every election they conduct is by mail.
MaryA1


Posts:0


11/26/2009 10:03 AM  
Richard,

Well, I would have to see that in writing. I don't believe the election chief was correct in saying the election law pertains to HOA elections; at least not from what I read. Did you read the statute I posted? It names all the types of elections (all public bodies) and HOA was not mentioned. Then read the HOA statute in the Davis-Stirling Act; it specifically says the elections laws pertaining to secret ballots -- electioneering is NOT mentioned.

I agree, the legislators sometimes are not clear enough when writing legislation. Sometimes I think they do that on purpose as it gives them something to do the next session. Have you ever seen the number of bills that are "technical corrections"?
RichardP13


Posts:0


11/26/2009 10:20 AM  
Mary,

The election chief is correct, as I used to work there myself and am a pretty good authority on election procedures. That being said, the statues do apply to HOA's in California because of the "secret ballot". Under our present by-laws, I doubt that its enforceable, someone could just say that they were just collecting proxies. All this would go away if quorum requirements are reduced or eliminated.

On a side note, how many homeowners know what's in the governing docs and more importantly if they weren't up to date or where to look for new laws. I consider myself pretty knowledgeable and when I moved here almost two years ago, I never heard of the Davis-Stirling Act. I believed that the docs given to me were the most current and I read them before I signed my loan papers. Little did I know the By-Laws and Rules and Regulations were out dated. I think we have way too many HOA groups throughout the country. Too many times I see HOA of 3 and 4 hoems or a cul d sac. The ONLY good it does is keep people here answering all these threads.
RichardP13


Posts:0


11/26/2009 11:11 AM  
Mary

Here is what Davis-Stirling.com says about Ballot Solicitation.

Ballot Solicitation
QUESTION: Our association adopted new election rules as required by the Davis-Stirling Act which mandates secret ballots. Are owners allowed to collect ballots from other owners, mark their ballots, and mail or deliver them to the Inspectors of Election?
ANSWER: No. Although owners may solicit proxies, it is improper to solicit ballots, to mark other owners' ballots, or to engage in electioneering when a voter is casting a ballot.

Fair Elections. The Davis-Stirling Act requires associations to a use a secret balloting system and use as a model the same procedures used by California counties for ensuring the confidentiality of the balloting process. Civil Code §1363.03(e). Therefore, it is instructive to find out what California election laws say about absentee ballots.

Electioneering. Persons may conduct normal campaign activities such as mailers, campaign speeches, door to door solicitations, and the like. What the Election Code prohibits is soliciting votes or electioneering at any time a voter may be casting a ballot.

No candidate or representative of a candidate, and no proponent, opponent, or representative of a proponent or opponent, of an initiative, referendum, or recall measure, or of a charter amendment, shall solicit the vote of an absentee voter, or do any electioneering, while in the residence or in the immediate presence of the voter, and during the time he or she knows the absentee voter is voting. Elections Code §18371(a).

As provided for in the Election Code, any solicitation or attempt to influence a voter under these sections is guilty of a misdemeanor. The same rules against solicitation and electioneering should apply to associations so that members can vote without intimidation or undue influence.

Diverting Ballots. Homeowners campaigning for or against special assessments, election of directors, removal of directors, or the like cannot induce owners to divert ballots away from the Inspectors of Election. Both the Election Code and the Davis-Stirling Act require that voters either mail or deliver their ballots in person to election officials. Elections Code §3017, Civil Code §1363.03(e)(2). Alternatively, a voter may vote an absentee ballot in person on the day of the election before the close of the polls. Elections Code §3018. The voter must vote the ballot either in the presence of an election official, or in a voting booth at the official's discretion, "but in no case may his or her vote be observed." The same standards apply to association elections (see more about absentee voting).

Exception for Illness. If voters are unable to return the ballot due to an illness or other physical disability, they may designate another person to return the ballot for them. Elections Code §3017. However, the statute specifically limits the acceptable group of eligible persons to family (spouse, child, parent, grandchild, brother, or sister,) or a person residing in that household.

MaryA1


Posts:0


11/26/2009 11:26 AM  
Richard,

You haven't posted what the Davis-Stirling Act says. You've posted a commentary -- an opinion -- from --- who??? I read the statute and did not have the impression it pertained to electioneering. Subsection (e) says: "The association shall use as a model those procedures used by CA counties for ensuring CONFIDENTIALITY OF VOTER ABSENTEE BALLOTS, (my emphasis) including all of the following". The following are subsections (1) and (2) which only states that ballots are to be signed and placed in a second envelope. The statute does not mention electioneering ONLY confidentiality of absentee ballots. Electioneering has nothing to do with absentee ballots!! I don't know who wrote the commentary you posted but I would certainly ask him by what basis he interprets the statute to apply to electioneering.

I've given my opinion, Richard; that's about all I can do. I'm not an attorney so my opinions are only that! You can take it or leave it -- makes no difference to me.
RichardP13


Posts:0


11/26/2009 11:44 AM  
Mary,

The opinion that I sent is from Larry Stirling, the co-author of tbe Davis-Stirling Act. When you think about it, the secret ballots that we receive through the mail from our say, PM, are no different in reality than absentee ballots received from the Great State of Arizona to vote for a U.S. Senator. Furthermore, it requires the association to follow procedures set up by California counties to ensure confidentiality of the balloting process. I am sure most of the new law is being followed anyways.

What gets my "panties in a bunch" is how our legal canceled our elections because quorum wasn't met and not allowing members to adjourn to a new meeting. I can't seem to get a answer here. Any suggestions?
RobertR1
(South Carolina)

Posts:5164


11/26/2009 12:45 PM  
RichardP,
Let me venture a guess about the "panties/bunch" part. Purely speculative and an out growth of my limited experiences.

You and Mary know your stuff, far beyond the knowledge of Mr. Average Homeowner. You out class a lot of people and speaking directly to your thread and issues that you are having a problem with; just maybe this could be a problem. To be right, sometimes, just doesn't fill the bill. These ingrained procedures, are handed down over the years and suddenly some homeowner questions the status quo, this causes a defensive reaction. No idea if this is true in your case, but I do sense you seem frustrated because they won't respond correctly. Don't let it bother you, just keep chipping away and stay involved, build some support slowly and in time you can make a difference. And keep up your dialogue with Mary.....great discussion.
RichardP13


Posts:0


11/26/2009 12:58 PM  
The "panties in a bunch" refers only to the frustration of getting some kind of answer to the question I raised. Robert, it seems you been here a while. Does it make sense that an attorney cancels an vote of members to adjourn to another meeting because "California Law" has no provision or instruction on how to move forward? The only reasoning behind this has to be to keep the present board in place.
RobertR1
(South Carolina)

Posts:5164


11/26/2009 2:53 PM  
Exactly my point RichardP,
Sometimes these kind of things make no sense to rational thought. But we can't give up the ball and concede the game. People that question and care are desperately needed in HOA's. They really are. Those people have to accept the fact they are probably in this for the long run. Common mortgage runs for 30 years, granted not all will stay to the end. Just don't drop the fight because you happen to be right and no one agrees, or worse, cares. Give notice you are going to be around awhile and you are going to get some support and you are going to make a difference. It is a long tough road, but the change takes place little by little until you and supporters get some leverage, then the real work begins and then at some point you look around and can say, "I made this place better and I am proud of it."

I have a tendency to be dramatic but, I have seen it happen and I am a believer."
RichardP13


Posts:0


11/26/2009 3:20 PM  
Thanks Robert !!

Now go and enjoy your turkey
MaryA1


Posts:0


11/27/2009 7:07 AM  
Robert,

Well, IF Larry Stirling wanted the Davis-Stirling Act to apply to the electioneering article of the CA elections code, he should have written it that way. As it's written, IMO, it does not say that, only that the ballots are to be confidential. However, even IF the electioneering law applies, that doesn't mean you cannot go to a members home and ask for their proxy. The member's home is NOT a polling place even if he is casting an absentee ballot. The electioneering clause of the election code says you cannot be at a member's home "electioneering" when he is filling out his absentee ballot. That doesn't mean you cannot go there at all!

But, getting to your real question. IMO, the attorney should not have called the meeting because there is no provision in D-S to adjourn the meeting because of lack of quorum IF there is such a provision in your gov docs. Perhaps he did have an ulterior motive in doing what he did. Or, perhaps he just didn't know what your docs say. Attorneys don't always have the right answers! At the meeting you could have jumped up and questioned his actions and stated what your bylaws say; I know that's what I would have done. Attorneys don't bowl me over. But now you need to question the BOD and ask why they are not following the bylaws by scheduling another meeting. Get all your like-minded friends together and confront the BOD. Then go door to door and get proxies from everyone who is too lazy to mail in their ballot or attend the meeting. You will not be in violation of the CA election code as long as they do not proceed to fill in their ballot in your presence.
RichardP13


Posts:0


11/27/2009 10:28 AM  
Mary

HOA were supposed to follow California County election procedures when they hold their annual elections. I think its just a easy way to pass the buck.

The attorney has been the same attorney since at least 2006 when the Act went into effect according to a past president of the association. She also was present at last years meeting and allowed the membership to adjourn to a new meeting with reduced quorum, but the only people runninng were incumbents. This year someone was challenging the establishment and IMO took steps to head off the pass. I thought it a little strange that an attorney would be at an election as counsel having the expereienced with elections as I do. When the attorney was asked to site law, code or case law, she refused.

So, I got the petition together to call a special meeting and we will clean house, one step at a time.
MaryA1


Posts:0


11/27/2009 10:39 AM  
Richard,

Well, good for you; I hope your plan is successful. Like you, I don't know why the attorney's presence was needed at the annual meeting. Seems to me like a waste of money (I'm sure she didn't attend free of charge!).

As far as following CA state election procedures, IMO, that only applys to ensuring confidentiality of ballots. But, who am I to say? LOL
RobertR1
(South Carolina)

Posts:5164


11/27/2009 1:05 PM  
Mary and Richard,
There you go, I think everyone is on the same page. Richard has his work cut out and just wishes Mary WAS there when the going gets rough. Mary has endorsed my conviction to not mess with her, as she just may come and put a sertious Whipass on my personal body.

Iam happy, and I think the road is straigh for a while.
Thank you both, is was a good discussion.

KM1
(FL)

Posts:62


11/30/2009 8:05 PM  
Just wanted to thank everyone for their educated inputs. As always, your opinions are helpful and much appreciated!
HarryJ1
(Florida)

Posts:4


12/06/2017 11:02 AM  
Our proxy form states that if a specific proxy is not designated, then the secretary of the HOA is designated by default. The property manager only gets to send and collect the forms. If you want, you could make the form say that if no proxy is designated, the proxy is only to be counted for the purpose of establishing a quorum, but not for voting in the election.
JanetB2
(Colorado)

Posts:4211


12/06/2017 7:00 PM  
Harry ... This thread is 8 years old. You would be better to start a new thread on a question or comment.
Please login to post a reply (click Member Login on the menu).
Page 2 of 2 << < 12



Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.







General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement