Tainted Election

There has been controversy regarding the 2012 HOA Board election. Peter (fictitious name) had served for four years as a member of the Enforcement Review Board, a committee of the Board. Peter also served on a committee to organize a community picnic. Peter was also a member of the Nominating Committee this year [2012]. Peter was nominated to run for a Board position, and he received the second highest number of votes (129). Subsequently, it was learned that Peter was not the owner of the house where he lived and, therefore, was not eligible to serve on the Board. In order to serve on the Board you have to be a member of the Association, and only the registered owners of the house may be members of the Association. The outgoing Board decided that Peter was out, and Dan (fictitious name), who was the Secretary for the past four years and who only received 89 votes, would serve in Peter's place.

Neither the outgoing Board nor the newly-elected Board (the remaining members) will address the issue of Peter's ineligibility to serve on the Board. The Association members were told that if we want to challenge the election results, we have to follow the procedure outlined in 720.306 of the Florida statute.

I'm wondering whether or not anyone else thinks, based on what I've said here, that their may be a valid basis for challenging the election results, and if that can be done without resorting to the procedure in 720.306.

Some of us feel that the election results should be voided, and a new election should be held.

A couple of questions:

Is Peter just renting his home or is there some family relationship between him that the person named on the deed?

Which of your community documents states that a board member must also be an owner?

Has Peter disputed the board's conclusion that he is not an owner and not eligible to serve on the board?

We all agree that Peter is not eligible to serve on the Board. The CCR, or deed restrictions, as we call them, say that only owners can be members. Peter is "renting with an option to buy."

The issue is: the Secretary knew that Peter is not the owner of the house. The Secretary historically encouraged Peter to get involved in HOA activities. The Secretary encouraged Peter to run for office.

No one, not even the Secretary, raised an objection when Peter was nominated. It was only when Peter won a seat on the Board that the Secretary asked the Board's counsel to render an opinion regardng Peter's eligibility.

The Secretary, the keeper of the HOA records, is supposed to know. He had the sense of mind not to let Peter vote in the election; but, he didn't have the sense of mind to object to Peter's eligibility to run for office?

Membership of the different standing Board committees is limited to members of the Association. So, you have to be a homeowner in order to serve on any committee.

Peter has been a committee member for at least four years. Peter attests to the fact that he has voted in every HOA election since he's been living here, while the Secretary attests that Peter has not voted because he's not a member.

Either the Secretary, Dan, knew and said nothing; or the Secretary, Dan, doesn't know what he's doing. Either way, some of us believe that the election should be voided because there are too many unanswered questions, and we believe that the Board, or Dan, is not being forthright in how they are handling the matter.

In our Association a member's spouse is also considered a member. One of our former President's was not on the deed but his wife was listed as the sole owner, thus according to our documents he was eligible to be on the Board and serve as President.

However, there was a problem because he was never voted on by the members and only one lady (Our CCO) mentioned it. As I mentioned in previous post our CCO is right about many things, just not tackful.

1. Are you on the BOD? No.

2. Are those that ran complaining that the results might be quite different were Peter not running? Only one of the candidates would say this.

3. Do I detect some of those seeking a new election might have finished behind Peter and Dan? No.

4. Without Peter on the BOD and the next vote getter (Dan) installed in place of Peter, would the BOD be full? Yes

5. Does the Treasure accept he made a mistake? No.

6. Are you accusing the treasurer of knowing full well what he did? Yes.

7. What would you like to be seen done? I would like to see the Secretary/Treasurer removed from the Board, and barred permanently from serving in any capacity in the HOA; and, I would like to see the election results voided, and a new election held.

Any new election you have generates much work for the Secretary. As Secretay of my Association, the fewer elections we have, the less work I have to do. I have plenty of work with the regular duties of a Secetary. Of cours if a special election is needed, I would be willing to do the work, but I think if the election were to vote me out of office, I couldn't help but harbor some bad feelings.

I wasn't on the Board at the time, but I can think of at least 3 or 4 opinions that the lawyer gave that were not correct. He advised the Board that there was no need to place a lien on on unit (the owner had been killed in a vechicle accident) where the dues were over a year delinquent.

Also years ago, my personal lawyer gave me a problem. We can listen to lawyers but remember their advise is not written in stone.

Peter is not the owner. All HOA documents were given to the owner. Peter never saw any of the HOA documents. Peter didn't know that he wasn't eligible.

There is no history. I moved into the development in March 2011, and I got involved in HOA activities in November 2011.

There are no issues between the Secretary and me. The issue is the manner in which Peter was declared ineligible.

No one raised an objection until it became advantageous to do so. Dan did not make it on the Board. This was Dan's opportunity, given the distribution of votes among the candidates, to get back on the Board. Dan threw Peter under the bus. He intentional withheld information and as a result, perpetrated a violation of the by-laws and deed restrictions.

Peter didn't know he wasn't eligible to serve on the board. No one told Peter he wasn't eligible. No one said anything about this until AFTER Peter was elected.

It begs the questions: who knew? And why didn't anyone say anything before the election was held?

There are no issues between the Secretary and me, unless you consider ethics to be an issue, in which case there is an issue between the Secretary and me.

BTW, the Dan already has played that card several times in an effort to shift the focus from the election to a personal attack on him. The issue won't go away until the Board, AND DAN, address it in a forthright manner, with honesty and with integrity.

It seems to me, from reading the original post, that the fault with Peter being nominated for a board position in the first place, lies squarely on the nominating committee. And, as I recall, Peter was on that committee. It is the nominating committee's responsibility to verify the eligibility of every candidate they nominate. They failed to do that. They did not do their job.

Typically, a nominating committee nominates only enough candidates to fill the vacant positions. From the original post it appears that there were more candidates than vacancies. I assume, then, that there were nominations from the floor.

To a certain extent, I can understand the desire to invalidate the election and start over. I can also understand how one might conclude that the person with the next highest number of votes (the runner-up, if you will) should be elected. But, that assumes that once Peter is eliminated the results don't change. However, that's not necessarily true. It might also be contrary to common parliamentary procedure.

What about the votes Peter received? If Peter were not on the ballot to begin with, as should have been the case, who would have received the votes that went to Peter? Would those votes have gone to the the person who, under the present circumstances, received the next highest number of votes? Or, would some of those votes have gone to someone else? The answers to those questions cannot be determined after the election that included Peter on the ballot has taken place. You can't change the input parameters and expect the output (result) to be the same.

It also seems to me, from reading the original post, that the type of vote that was taken is known as a plurality vote. A plurality vote is the largest number of votes to be given any candidate or proposition when three or more choices are possible; the candidate or proposition receiving the largest number of votes has a plurality. However, a little known (and often ignored) requirement of a plurality vote is that the person or proposition receiving the plurality must also receive a majority of the votes cast. According to proper parliamentary procedure, "A plurality that is not a majority never chooses a proposition or elects anyone to office, except by virtue of a special rule previously adopted." (RONR) So, if you intend to follow proper parliamentary procedure, Dan must also have a majority of the votes cast to be elected to a board position.

Also, what has not been told is if there were any other candidates who received fewer votes than Dan. To determine what makes sense to do I think we need to know how many board positions were being voted on, how many candidates there were, the total number of votes cast, and the number of votes each candidate received.

To be practical, what I would suggest is that if the governing documents and/or state law doesn't provide any guidance on how to proceed from this point, put it in the hands of the homeowners. If the majority of the homeowners believe that there should be a new election, let them petition for a special meeting to void the previous election and hold a new one.

Thank you all for you input.

This has been a learning experience for me. All of you have come up with valid comments and questions, and interesting insight, some of which I had already thought about and considered before I came to this forum. Also, your comments and questions have helped me in formulating a statement to give to the arbitrator, if we go the arbitration route, who is not familiar with the circumstances, and may propose or ask the same questions and make the same comments.

Perhaps arbitration is the way to go to settle the matter once and for all. I don't believe that the controversy will be settled any time soon without some kind of third part intervention.

I am also reminded of the caveat: Be careful what you wish for. You might just get it.

In Florida, arbitration is required BEFORE election disputes can be argued in court.

http://www.apmnews.org/arbitration-vs-mediation-for-homeowners-associations-dispute-resolution/