Reader Questions - Can We Force the Board?, Campaign Flyer

Dear Sir,

Appreciate your column in the newspaper on HOAs. Is there a way to force a Board to allow the membership to vote on an issue without calling for a recall?

Thanks in advance,

J.P, Menifee

Dear J.P.,

If there is sufficient interest in an issue that the board is not addressing, the first method might be simply to have group of persons speak in Open Forum (not necessarily for very long) to urge the Board to deal with the issue. Unless the issue is a true emergency, the Open Meeting Act does not allow a decision on a non-agenda item to be decided at that time, but the board hopefully would set it for a future agenda.

If that does not get the board’s attention, your bylaws probably say that 5% of the members can petition for a membership meeting. This is also provided for (if the bylaws do not mention it) in Corporations Code 7510(e). These petitions can too often waste the HOA’s time, since often the petitioners are able to accumulate the 5% for the petition but not much beyond that, so the meeting fails for lack of quorum. If you are considering such a petition, make sure that the community really is interested in the issue.

Boards are charged by law to direct the association’s “the activities and affairs” (Corporations Code Section 7210), so if the matter is really a board decision, a petition could prove to be a frustrating exercise, depending on the issue. Is this something the members vote on (amendments, assessments, etc)?

I really don’t like recalls, but that can also be triggered by the same petition process.

Hope your board IS accurately gauging the desire of your community (they might be!).

Best,
Kelly

Dear Mr. Richardson,

Our association has yearly elections of our 5 member Board. Three have been on the board for many years. 

This year, there are two new candidates, and a lot of interest. A flyer was distributed last week, urging homeowners to cast their 5 votes for these 3 Board members. The other 2 incumbents were not included on the flyer. This appears to be collusion by these three members and contrary to the Brown Act. It also gives the impression that this “bloc” will vote together on any homeowner issues, thus nullifying any open discussion within the Board.

With this flyer, have these three Board members stepped out of bounds regarding the Brown Act?

Thank you for your time and interest. Sincerely,

E.H., Lompoc

Dear E.H.,

Association funds cannot be used to promote any particular candidate in a board election (Civil Code 1363.04). Hopefully, the three candidates used their own funds, and not association resources. The association (and management, and yes even legal counsel) also cannot endorse candidates.

Slates are common in board elections, and there is nothing inherently wrong with that. Since all discussion of any HOA business must now be in the open, any private agreements on HOA decisions would be wrong, and a violation of the community’s trust.

The Brown Act doesn’t apply to common interest developments (aka “HOAs”), but the Open Meeting Act (Civil Code 1363.05) does.

Lastly, I dislike cumulative voting, and routinely recommend it be amended out of my clients’ governing documents.

Best,
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.