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Subject: Yes/No Votes on ballot for BOD
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Author Messages
AndersH
(Arizona)

Posts:30


02/23/2020 4:47 AM  
We are a 108 condo community in Arizona. There are three (3) director positions available with four (4) candidates running. The Absentee Secret Ballot sent to members ask for Yes____ or No____ votes for each candidate.

The instructions reads as follows:
Vote "Yes" for not more than three (3) candidates. Voting "yes" for more than three (3) will invalidate the ballot. You can vote "no" for one (1) or more candidates. If you do not like any of the candidates, you can vote "no" for all four (4) of them. If any candidate receives more "no" votes than "yes" votes, that candidate is not elected to the Board of Directors. For example, you could vote "yes" for two (2) candidates and "no" for the other two (2) candidates or any variation thereof provided you do not vote "yes" for more than three (3) candidates.

I find this new way of voting very confusing. In the past we just voted for the candidates we liked and the candidates with the highest count would win. I do not see any reason for the "no" votes. In addition, how will the votes be counted.

Is anyone familiar with this way of voting, I appreciate hearing from you.
Anders
GeorgeS21
(Florida)

Posts:2308


02/23/2020 5:39 AM  
Interesting way to keep nominee(s) off the board?
SueW6
(Michigan)

Posts:655


02/23/2020 7:38 AM  
This method is used to retain members, not bring in new members.

Do you see this as the tool to get rid of current members nbers?
CathyA3
(Ohio)

Posts:832


02/23/2020 8:00 AM  
Hopefully someone from Arizona will chime in, but for now I would look in your bylaws and in AZ condo laws to see if there is anything prohibiting it.

Do the No votes count against the Yes votes? I guess they'd have to, otherwise there would be no purpose to them. I have visions of the entire slate of candidates ending up with 0 votes...
AugustinD


Posts:2915


02/23/2020 8:25 AM  
Posted By AndersH on 02/23/2020 4:47 AM
We are a 108 condo community in Arizona. There are three (3) director positions available with four (4) candidates running. The Absentee Secret Ballot sent to members ask for Yes____ or No____ votes for each candidate. The instructions read as follows:
Vote "Yes" for not more than three (3) candidates. Voting "yes" for more than three (3) will invalidate the ballot. You can vote "no" for one (1) or more candidates. If you do not like any of the candidates, you can vote "no" for all four (4) of them. If any candidate receives more "no" votes than "yes" votes, that candidate is not elected to the Board of Directors. For example, you could vote "yes" for two (2) candidates and "no" for the other two (2) candidates or any variation thereof provided you do not vote "yes" for more than three (3) candidates.
I would like to see what your condo's bylaws say about electing directors. My first blush impression is that this ballot is likely unlawful. I think it presents significant liability concerns. For example, suppose quorum is met for the annual meeting. Everyone votes by absentee secret ballot. The voting breakdown is as follows:
Joe Jones
5 yes votes and 20 no votes

Sally Sky
7 yes votes and 18 no votes

Bob White
23 yes votes and 0 no votes

Irene Littleflower
23 yes votes and 0 no votes

According to the "rules," Jones and Sky will not be elected. In my opinion, Jones and Sky could successfully sue. Sky in particular could be said to have strong grounds to argue she should be on the board.

Was the ballot designed by a rogue board determined to keep Jones and Sky off the board? In a COA that has many members who do not like Jones and Sky but are too lazy to run for the board themselves? I am ready to bet this is the case.

And no, I have never seen a ballot like this. It's dumb; naive; written by people with a fifth grade education.
AugustinD


Posts:2915


02/23/2020 8:26 AM  
Posted By GeorgeS21 on 02/23/2020 5:39 AM
Interesting way to keep nominee(s) off the board?
GeorgeS21 nailed it.
SueW6
(Michigan)

Posts:655


02/23/2020 8:34 AM  
Its a way to get rid of incumbents. However, there’s the danger of the entire board being declined, which would cause an entirely new election, or the ability of the survivors (if any) to appoint their choice to fill the vacancies.

Is there a coup in the making?

The OP should demand how the Board or nominating committee came up with this idea.
MarkW18
(Florida)

Posts:717


02/23/2020 10:17 AM  
All HOA elections I have conducted over the years have always had just a checkmark next to a candidates name. But, I don't see anything legally wrong with the process. Crooked yes.

Let's say there are three spots open with four candidates. The Board doesn't like two of the candidates and two are incumbents. This system will allow the two incumbents to get elected and the two others not to. Then the Board could then appoint someone they choose because, as in the example given the membership overwhelmingly voted no on the two newbies.

The other question is that it says you may vote yes or no. What if you vote yes on two candidates, but don't vote no on the other two?
AndersH
(Arizona)

Posts:30


02/23/2020 10:44 AM  
Thanks Everyone.
I checked with our PM and she told me that this format of voting came from Arizona ARS 33-1250 C2. The complete section C is copied below.

C. Notwithstanding any provision in the condominium documents, after termination of the period of declarant control, votes allocated to a unit may not be cast pursuant to a proxy. The association shall provide for votes to be cast in person and by absentee ballot and, in addition, the association may provide for voting by some other form of delivery, including the use of e-mail and fax delivery. Notwithstanding § 10-3708 (https://1.next.westlaw.com/Link/Document/FullText? findType=L&originatingContext=document&transitionType=DocumentItem&pubNum=1000251&refType=LQ&originatingDoc=I4a30a860c62211e78606f7fda173061c&cite=AZSTS103708) or the provisions of the condominium documents, any action taken at an annual, regular or special meeting of the members shall comply with all of the following if absentee ballots or ballots provided by some other form of delivery are used:
1. The ballot shall set forth each proposed action.
2. The ballot shall provide an opportunity to vote for or against each proposed action.
3. The ballot is valid for only one specified election or meeting of the members and expires automatically after the completion of the election or meeting.
4. The ballot specifies the time and date by which the ballot must be delivered to the board of directors in order to be counted, which shall be at least seven days after the date that the board delivers the unvoted ballot to the member.
5. The ballot does not authorize another person to cast votes on behalf of the member.

In addition, I copied Article V from our Bylaws.
It reads as follows:
ARTICLE V
NOMINATION AND ELECTION OF DIRECTORS
Section 5.1. Nomination. Nomination for election to the Board of Directors
shall be made by the sitting Board of Directors and may also be made from the floor at the
annual meeting.

Section 5.2. Election. Election to the Board of Directors shall be by secret
written ballot. At such election the Members or their proxies may cast, in respect to each
vacancy, as many votes as they are entitled to exercise under the provisions of the
Declaration. The persons receiving the largest number of votes shall be elected.

Hope this will help.
Best regards,
Anders

JohnC46
(South Carolina)

Posts:9313


02/23/2020 11:16 AM  
Anders

What a convoluted system your BOD set in place. I believe they might be confusing AZ law concerning a proposed action (the Yes or No voting), versus a BOD Election.

I have never heard of such a way of voting.
MarkW18
(Florida)

Posts:717


02/23/2020 11:24 AM  
Posted By JohnC46 on 02/23/2020 11:16 AM
Anders

What a convoluted system your BOD set in place. I believe they might be confusing AZ law concerning a proposed action (the Yes or No voting), versus a BOD Election.

I have never heard of such a way of voting.



The OP shouldn't feel bad. I found 4 HOA's in Arizona that do their ballot with a yes/no box.
GeorgeS21
(Florida)

Posts:2308


02/23/2020 11:25 AM  
Anders,

I think you Bylaws rule - and, agree that your management company may be confusing elections with voting for proposals.
AugustinD


Posts:2915


02/23/2020 11:29 AM  
The OP's manager read this:
Posted By AndersH on 02/23/2020 10:44 AM
... from Arizona ARS 33-1250 C2. ...
"Notwithstanding any provision in the governing documents...
2. The ballot shall provide an opportunity to vote for or against each proposed action."

From the OP's Bylaws: "The persons receiving the largest number of votes shall be elected.

If applied to an election of board directors, the above quoted ARS section requires the COA to provide an opportunity to vote for or against each candidate. But the OP's manager stupidly instructs the members that they may vote "yes" for only three of the four candidates. Thus the manager took away the "opportunity to vote for" one of the candidates. This violates the above quoted ARS section.

I think a court would say that the only fair reading of the statute is to conclude that a ballot for election of directors implicitly offers the chance to vote against a director via, say, not checking a box next to a candidate's name.
CathyA3
(Ohio)

Posts:832


02/23/2020 11:54 AM  
Posted By AndersH on 02/23/2020 10:44 AM
.... Notwithstanding § 10-3708 (https://1.next.westlaw.com/Link/Document/FullText? findType=L&originatingContext=document&transitionType=DocumentItem&pubNum=1000251&refType=LQ&originatingDoc=I4a30a860c62211e78606f7fda173061c&cite=AZSTS103708) or the provisions of the condominium documents, any action taken at an annual, regular or special meeting of the members shall comply with all of the following if absentee ballots or ballots provided by some other form of delivery are used:
1. The ballot shall set forth each proposed action.
2. The ballot shall provide an opportunity to vote for or against each proposed action. ...

snipped for brevity





This same wording came up in another thread. I still question whether the words "each proposed action" actually refers to candidates for the board or instead refers to proposals that the homeowners are voting on.

I think the wording is strange if it does apply to candidates, and I doubt that the law was intended to make it easier to game the system which is what can happen.
MarkW18
(Florida)

Posts:717


02/23/2020 12:06 PM  
So the same issue stands, if no one challenges the Board, who cares. You could be 100% right all the time and not have accomplished anything.
KerryL1
(California)

Posts:7046


02/23/2020 1:11 PM  
The statute says nothing about the election of directors. It only uses the word "actions. I, then, agree," with all of you who say it's not about electing candidates to the board of directors.

I'm thinking there's somewhere else in the statutes that addresses electing directors. There also might be something in AZ corporations codes about this topic.

I agree that the PM misread the statutes and that the ballot instructions also are poorly written. We did have a couple of good AZ posters, but haven't heard from them in a while.

The instructions tell voter that if, given 100 voters and 3 open slots, and:

A gets 51 Y & 49 N
B gets 51 Y & 49 N
C get 49 Y & 51 N
D gets 30 Y and 70 N

C is not elected. That's ridiculous. The three with the highest # of votes should win. (I'm 1st to admit I may be thinking about this incorrectly.)

Anders should find a few other owners to chip in to seek the advice of an HOA attorney. Shouldn't take much time for a written legal opinion & may cost, what? $300? This is a legal question not one for a PM.
GenoS
(Florida)

Posts:3673


02/24/2020 12:33 PM  
Posted By KerryL1 on 02/23/2020 1:11 PM
The three with the highest # of votes should win.

After all of the election procedures and voting processes are complete, that's how the winners are, or should be, decided in almost every case.

I think an attorney would end up charging a lot more than $300 for a written opinion on an unfamiliar association's voting procedures, and how they mesh with state statutes. At $150 an hour (and that's a tremendous bargain) you'll get 2 hours of attorney time. If it was me, I'd expect to pay $250 an hour for 8 hours. With any luck it would only take 6 hours.
SheliaH
(Indiana)

Posts:3054


02/24/2020 12:48 PM  
Although I understood the directions as written, I agree with JohnC46 this is a convoluted system. What’s wrong with:

“Listed below are the candidates for the board – please select THREE residents from this (if you select four or more, your ballot will be disqualified)

You don't need yes or no questions - just pick the three you want and turn in the damned thing. When all the ballots come in, count them up and the top three vote-getters will a spot.

Surely, the people in this community aren’t so addled they can’t count (then again…..)
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