Articles – Elections

Who is Prohibited from Being an Inspector of Election?

California law prohibits the following individuals from serving as an Inspector of Elections:

  • Members of the board of directors;
  • A candidate for the board of directors;
  • An owner who is related to a member of the board of directors or a candidate;
  • Anyone under contract with the association. This would include the management company, including their employees, an attorney who advises the association from time to time, and the association's accountant and/or CPA.

Why You Should Not Be An Inspector of Elections

While certain homeowners can volunteer to become an inspector of elections, there are definite risks that should be avoided.

California law prohibits the following individuals from serving as an Inspector of Elections:

  • Members of the board of directors;
  • A candidate for the board of directors;
  • An owner who is related to a member of the board of directors or a candidate;
  • Anyone under contract with the association. This would include the management company, including their employees, an attorney who advises the association from time to time, and the association's accountant and/or CPA.

 

Assuming an owner does not fall into one of the prohibited categories, there are other reasons not to volunteer:

  • You can get sued for negligence if an owner thinks you have made an error. Whether you have made an error or not, you can still be sued by an unhappy owner.
  • The election results can be contested for up to one year. This could involve you in a lawsuit because election contents are litigated in California courts.
  • Unless you are willing to accept the risk of defending a lawsuit, you will need to purchase insurance that will provide you with a legal defense. Even if you purchase such insurance, you can still be named as a defendant in a lawsuit which will cost you a great deal of time and stress.
  • Insurance policies for homeowner associations are almost never going to provide you with a legal defense. These policies are generally written to protect the community association and the board of directors, not the individual homeowner.
  • Even if you are never sued, there are always homeowners who believe their HOA election was not handled properly, causing unnecessary friction between neighbors. If you are the inspector of elections, you place yourself into a position where you will likely be unfairly criticized.

 

Are there any reasons why a homeowner might want to volunteer to be the inspector of elections? Only one. You save money.

Assuming your HOA has 50 units, the estimated cost of hiring a professional inspector of elections will be approximately $800.00 depending on the services requested. By doing all of the work for your association, you save your HOA $800.00 and yourself $16.00. For $16.00, you do all of the work and assume all of the risks.

Appointment of Assistants to Inspector of Elections

Inspectors of Election are permitted to appoint and supervise additional people to verify signatures and to count and tabulate votes as the inspector or inspectors deem appropriate, provided that the people are independent third parties. (Civil Code Section 5105(a)(6).)

Prior to the meeting, inspectors of election, or their designees, may verify member information and signatures on the outer envelopes before the meeting at which ballots are to be tabulated. (Civil Code Section 5120.)

 

Official Ballots Required

As set forth in Civil Code Section 5115(a), ballots shall be distributed by the association to every member. Voters may not substitute their own ballots for official ballots provided by the association. To make certain owners are aware of this restriction, boards should include it in their election rules.

 

Revocation of Ballots

Once a member has cast his or her ballot, he or she cannot retrieve it to change their vote nor can it be revoked.

Once a secret ballot is received by the inspector of elections, it is irrevocable. (Civil Code Section 5120(a).)

If a member has not yet voted and has lost or misplaced his or her ballot, the member can obtain a replacement ballot provided he or she does so timely.

 

Election Rules Required

Effective July 1, 2006, every common interest development is required to adopt election rules that comply with California Civil Code Section 5105. These rules must incorporate the relevant language from the association’s Bylaws and CC&Rs. Failure to adopt election rules may result in an owner contesting an election. Election rules should include the following.

 

  • Nomination procedures,
  • Qualifications of directors,
  • The method of selecting the inspector or inspectors of election,
  • Any rules for accessing association media or common areas,
  • A description of the secret balloting and mailing procedures,
  • Procedures for uncontested elections, and
  • Procedures for recall elections.

 

Applicable elections as set forth in Civil Code Section 5100 include:

  • Elections of directors,
  • Removal of directors,
  • Special assessments,
  • Amendments and restatements of the CC&Rs,
  • Amendments and restatements of the Bylaws, and
  • Conveyances of common area.

 

 

Proxies

A proxy is a substitute for another. While proxies are permitted by law in California, they have become obsolete when it comes to elections held by homeowner associations because these elections are now held by secret ballot usually mailed to the inspector of elections. All ballots count toward establishing a quorum. Consequently, the use of proxies can be prohibited by amending an association's governing documents.

Proxy holders must be members of the association. Members cannot designate an attorney, friend, or non-member to be a proxy. California law does not require that members be in good standing to be proxies, only that they be members of the association.

 

While proxies may be used, they are never required given that voting is conducted by mail. Accordingly, associations are not required to provide proxies to members.

 

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