Reader Questions - Recalls, Voting

Hello Kelly,

I enjoy your column and have learned so much from reading it religiously. I have 2 questions:

1. A petition to recall a board member received sufficient signatures and the recall election was scheduled. The board appointed three homeowner inspectors, each of which either circulated or signed the recall petition. Is it legal and/or ethical for them to participate in the counting of the recall ballots?

2. The recall petition called for both the recall election and the election of candidates to replace the board member if the recall is successful to occur at the same meeting. The board and management company have refused to ask for candidates and the agenda for the recall meeting says nothing about the election of candidates. Ballots containing the recall vote only have already been sent to homeowners. Isn’t the board required to follow the petition?

S.P., Banning

 

Dear S.P.,

Inspectors of election may be volunteers, so long as they are “third parties.” A “third party” under Civil Code Section 5110(b) may not be director, candidate or someone related to a director or candidate. It is hard to ask a volunteer not to have a point of view, but in a hotly contested election the board should be careful to try to have a mix of views on the inspector panel, to give greater comfort to the members that the election is being conducted fairly.

As to the recall election, the petitioners were wise to ask for voting to fill the vacancy if the recall vote succeeds. The board is violating the petition and is harming the association by not asking for a conditional election of the replacement at the same time. Corporations Code Section 7224(a) bars boards from filling vacancies created by recall membership vote, so recalls should always be accompanied by a conditional election, meaning that ballots will give voters the opportunity to vote for a director to fill any vacancy created by a successful recall. Even if a recall petition does not ask for a simultaneous election for replacements, the association should include it anyway in the ballot in order to prevent a possible situation where the board is recalled but there are no replacements.

Good luck to your association,
Kelly

Dear Kelly,

We recently had board elections. Our board allows for up to 9 elected directors. Five candidates timely submitted nomination forms, two submitted late, and one submitted his candidate nomination form on the day of our annual meeting (election from the floor). Can this eighth candidate vote himself to the board with only 9 votes? Does this mean that a person might vote himself to the board with just 9 votes from the floor at the annual meeting?

V.D., Solana Beach

 

Dear V.D.,

Civil Code 5105(a)(3) protects the right of eligible member to nominate themselves, so yes, someone could show up on the date of the election and announce themselves as a “write-in” candidate. Since it appears your association allows cumulative voting, then yes, that person can vote for themselves 9 times. If he is the 9th place vote recipient, then yes, he could be elected. Your question illustrates exactly why members of associations should make sure they vote, because sometimes there is a good reason why nobody votes for a particular candidate!

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®.