Following are new voting and election rules that the board intends to consider and adopt at an open meeting of the board on Saturday, Feb. 27, 2016. These rules are to comply with California law that made major changes in the way membership votes in homeowner association are to be conducted.
Among other things, the law created a “secret ballot” method of voting in which voting is not conducted at member meetings but is conducted by ballots that are sent to all members. The law requires that the ballots in these elections and votes be opened and tabulated by inspector(s) of election at an open meeting or board meeting which any member can attend.
The law also requires every association to adopt voting and election rules. The board has consulted with the association’s legal counsel to develop rules that comply with the requirements of the new law and which work in a practical way for our association.
The board has also been working with legal counsel to prepare updated governing documents for our association, which will be presented to the members in the coming months. The new documents will bring our association up to date with current law and will eliminate confusing or conflicting provisions in our existing bylaws and CC&Rs.
The voting and election rules will apply to the member vote on the amended documents mentioned above, as well as elections of directors and all other official membership votes.
TAHOE DONNER VOTING AND ELECTION RULES
Article 1 MEDIA
1.1 Access to Association Media – Candidates for the Board. The Board may but is not required to make Association media (i.e., posting on the Association’s official bulletin board/notice board/kiosk, or official website, broadcasting on Association television monitors, or other notices mailed or delivered by the Association to the owners of the Lots or Units) available to qualified candidates running for election to the Board for purposes that are reasonably related to the election in which that candidate is running. If the Board allows any candidate access to Association media, then all qualified candidates shall be allowed equal access to the same media.
1.2 Access to Association Media – Other Matters. If the Board utilizes Association media to advocate a point of view on any matter (other than election of directors) that requires Member approval, or allows any Member access to Association media for that purpose, then all Members advocating a different point of view shall be allowed equal access to the same media. The Board shall not be required to allow access to more than one Member advocating the same point of view.
1.3 “Equal Access”. “Equal access” shall mean, in the case of written statements, publication of written statements not to exceed a predetermined number of words and, in the case of broadcast statements, broadcast statements not to exceed a predetermined length of time. The Board may require that broadcast statements be pre-recorded to comply with time constraints. The Board shall not edit or redact any statement, but shall not be required to publish any statement that exceeds the predetermined length restrictions.
1.4 Responsibility for Content. All statements published in Association media pursuant to the “equal access” rules must identify the author or proponent. No anonymous statements will be permitted. The author and/or proponent of any statement or point of view shall be solely responsible and liable for the content of their statements. The Association shall not be responsible or liable for the content of any statement published pursuant to the “equal access” rules. The content of any candidate statement shall be limited to a statement of the candidate’s qualifications to serve as a director.
Article 2 MEETING SPACE
2.1 Access to Common Area Meeting Space – Campaigning by or the Board. The Board shall ensure that during a campaign all qualified candidates for election to the Board are given access to common area meeting space, at no cost, for purposes reasonably related to their campaigns.
2.2 Access to Common Area Meeting Space – Other Matters. Whenever the Board places a matter before the Members which requires Member approval, the Board shall ensure that Members advocating a point of view on the matter are given access to common area meeting space, at no cost, for purposes reasonably related to advocating their point of view, whether or not they agree with the point of view advocated by the Board on the matter at issue.
Article 3 VOTING BY SECRET BALLOTS
For a vote on any of the matters specified in Civil Code section 5100(a), voting by the Members shall be conducted by secret ballot using a “double envelope system” as described in Civil Code section 5115(a). Ballots and two envelopes with instructions on how to return ballots shall be mailed by first-class mail or delivered by the Association to all Members entitled to vote in such vote or election. Ballots shall be distributed a minimum of thirty (30) days prior to the deadline for voting. These matters are: (i) elections regarding assessments legally requiring a Member vote, (ii) election and removal of directors, (iii) amendments to the governing documents, and (iv) grants of exclusive use of common area property pursuant to Civil Code section 4600.
For votes on any other matter, votes may be by secret ballot or by written ballot, and ballots may be distributed a reasonable time (which may be less than thirty (30) days) prior to the deadline for voting.
Article 4 INSPECTORS OF ELECTION
4.1 Appointment of Inspectors. Whenever there is a membership vote or election, the Board shall appoint one or three inspectors of election.
4.2 Qualification of Inspectors of Election. Inspectors may be any persons the Board reasonably believes to be independent with respect to the matter or matters being voted on and may include the Association’s manager, accountant, or legal counsel or Members of the Association, but may not be a Member of the Board or a candidate for election to the Board or a family member of a current Member of the Board or of a candidate.
4.3 Indemnification of Inspectors; Liability Insurance. Inspectors of election shall be deemed to be agents of the Association for purposes of Corporations Code section 7237 and shall be entitled to indemnification by the Association to the fullest extent provided by law. As provided in Corporations Code section 7237(i), the Association shall have the power to purchase and maintain insurance on behalf of any agent of the Association against any liability asserted against or incurred by the agent in his or her capacity as an agent of the Association or arising out of the agent’s status as such, whether or not the Association would have the power to indemnify the agent against such liability under the provisions of Corporations Code section 7237.
Article 5 CANDIDATES FOR THE BOARD
5.1 Qualification of Candidates. Candidates for the Board must be Members in good standing and must meet any other qualifications or restrictions set forth in the Bylaws. Co- owners of one or more Lots or Units may not serve on the Board at the same time (Bylaws Article VII, Section 2(iii)). “Member” means a person who holds legal title to the property (i.e., is named in the deed for the property).
5.2 Nominations. The Board shall publish or post a notice recruiting candidates for the Board and stating the deadline for receipt of nominations. Any Member who satisfies the qualifications may place his or her name in nomination for the Board by giving written notice to the Board before the published deadline for receiving nominations. In addition, the Board may recruit qualified candidates and/or may appoint a Nominating Committee to nominate qualified candidates.
5.3 Notice of Known Candidates. After the deadline for nominations of candidates for the Board, nominations shall be closed. The names of all persons who are qualified candidates for election to the Board shall be set forth on the ballots. No “write-in” candidates shall be permitted on the ballots in the election of directors.
Article 6 MEMBER VOTING RIGHTS
6.1 Qualification for Voting. Only Members in good standing shall be allowed to vote. A Member shall be deemed to be in good standing unless, after notice to the Member and an opportunity for hearing, the Board has found the Member to be not in good standing and has so notified the Member in accordance with Civil Code section 5855(a). As long as any co-owner of a Lot or Unit is not in good standing, no vote shall be permitted for the Lot or Unit.
6.2 Voting Power of Each Membership. On each matter before the Members, only one vote shall be cast for each Lot or Unit. Once a ballot is received by the inspector of election, it may not be rescinded. Cumulative voting is not permitted in the election of directors.
6.3 Election by Acclamation. If, as of the published deadline for receiving nominations, the number of qualified candidates for election to the Board is not more than the number of directors to be elected, then the qualified candidates shall be declared elected and shall take office at the first Board meeting following the deadline for nominations or, if later and an annual meeting is held, then at the first Board meeting after the annual meeting. Written notice of the election shall be given to the Members.
6.4 Proxies. In any election or vote of the Members conducted by the Association, only official ballots issued by the Association shall be counted as votes. Proxies are not ballots and are not valid as votes in any election or vote conducted by the Association.