Board Eligibility; Ballots After Failed ElectionAug 12, 2023
By Kelly G. Richardson, Esq., CCAL
Dear Kelly: Our bylaws require 2-year residency before eligibility to serve on our board, BUT we’re desperate for a treasurer with experience. If we find such a person, is there any way we can bring them on board? E.G., Poway
Dear E.G.: Civil Code Section 5105(c) was amended several years ago to list one mandatory eligibility standard – membership in the HOA – and four optional eligibility standards that could be stated in bylaws or election rules. An HOA may choose to disqualify candidates who are delinquent in their assessments; convicted of felonies harmful to the HOA’s ability to obtain dishonesty insurance, have a co-owner who is already a nominee or director, or not have been a member for a year. The statute did not say that these were the only allowable optional standards, but most lawyers have opined that the list is exclusive, not inclusive – so these are the only four standards. In 2021, Civil Code Section 5103 took effect, allowing term limits as another permissible eligibility standard. The 2-year residency requirement is clearly outside the listed permissible eligibility requirements, so the HOA should check with its legal counsel. Best regards, Kelly.
Mr. Richardson, I came across an article you wrote. A question I’ve never seen addressed is what is done with the ballots if there is no quorum. Do they remain sealed until the time for any challenge to the election has expired, or can the Board open them once the election is called for lack of quorum, whether the time to submit ballots is extended or not? The law is apparently quiet on how to treat ballots when no quorum is achieved; it just seems to be routine practice not supported by the law to let Boards decide what to do with ballots when there is no quorum. It is explicit on how to manage the ballots if there is a quorum. I have asked around - no one seems to know. Thank you, C.M., Sacramento.
Dear C.M.: You are correct, the Davis-Stirling Common Interest Development Act does not specifically say what to do with the ballots cast if quorum is never attained. We do know from Civil Code Section 5115 that the ballots are to be secret, and Section 5120(a) requires that they cannot be opened before counting happens. So, the implication is that nobody can see them unless and until quorum is attained and the ballots are tabulated. Therefore, it would seem logical that if the election fails the sealed ballots inside the double envelopes (Section 5115 (c)) should be destroyed and never opened. Sincerely, Kelly.
Can two people living in the same house be on two different boards, for example, one on the architectural committee and the other on the HOA board? I was told they are separate boards and that the two can live in the same house and hold a position on each of the boards. B.C., Cherry Valley.
Dear B.C.: One of the four optional eligibility standards in Civil Code Section 5105 is that co-owners may be prohibited from being board candidates or directors at the same time. However, I think it’s OK for co-owners to serve in different volunteer capacities in the HOA. Thank you, Kelly.
Readers: The official site for the Davis-Stirling Act is: www.leginfo.legislature.ca.gov.