Reader Questions - Election Documents, Telephonic Board Participation

Hello Mr. Richardson,

I attended a Board meeting in which the opening of ballots was on the agenda. The president mentioned that a list with the names of all the people that voted would be created. I asked if I could have a copy of the list and he told me I could not have it, saying that the list was private information. The management company representative then proceeded to separate the ballots from the return envelopes and crumpled the return envelopes. Don’t I have a right to see the list? Should the return envelopes be thrown away?

Sincerely,

C.W., Goleta

Dear C.W.,

I am assuming that your association’s election rules specifically allow the management company to act as Inspector of Elections, because otherwise the manager cannot serve that function, per Civil Code 5110(b). Under Civil Code 5125, only the ballots must be made available for inspection. However, several other documents can also be important to confirm the legitimacy of an association vote. The ballot check-in sheet is often an important document, recording who voted and making sure nobody votes twice. The outer envelopes could be checked as to the legitimacy of the signature on mailed in ballots. Yet, of all these different documents, only the ballots are required to be made available for inspection. Civil Code 5125 allows the Inspector of Elections to return ballots to the association one year after the election (which is the last day it could be challenged under Civil Code 5145). So, a member could conduct their own “recount” but would not be able to rule out double votes, invalid proxies, or forged ballot envelopes. Is this a hole in the law? Yes. Perhaps the law will in the future have a requirement that proxies, the outer envelopes and the sign in sheet also be kept as election materials. Until then, associations might explore amending their bylaws to address this.

Hoping this is helpful,
Kelly

Dear Kelly,

It has been my understanding that in order to avoid deliberate exclusion of a contrary opinion, all non-present members of a board must be notified of and have the chance to participate via phone. In other words, you cannot single out supporters and ignore non-supporters. That notification must be documented in and become part of the minutes in which any vote thus taken is recorded. Those minutes must then be approved with the whole Board having a chance to vote.

Thanks for writing to help us poor struggling members of HOA boards.

A.S., Coronado

Dear A.S.,

Civil Code 4920 requires four days minimum advance notice to all members, for any non-emergency open board meeting. A meeting solely to be in closed session can be held on two days minimum notice. A board can conduct a meeting by telephone conference, under Civil Code 4090(b) and 4925, so long as homeowners are able to hear the open part of the board meeting.

However, the board is not required to permit a director to “attend” by phone. Some associations do not have a speakerphone (please, do not use cell phones for this purpose), or have poor signal strength in the meeting location.

Check your association bylaws- they probably also have specific requirements regarding notification to directors of upcoming meetings.

Thanks for your question,
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®.