Association Board Member Elections

Cultivating, nominating and electing board members is something that should always be on the minds of current board members. Politics in any arena can be tricky, but in associations it can also sometimes be difficult to find people willing to serve. Many people feel unqualified or even afraid to volunteer due to fears of being taunted by potentially disgruntled residents. While these fears are not wholly un- founded, current board members should encourage volunteerism by running fair elections, showing that residents with different types of views and knowledge are needed and desired, and letting potential candidates know that their service will be valued, even if all residents don’t agree with every decision they make. Minnesota associations have safeguards in place to indemnify board members from potential liability, so if a resident has the time and desire to serve, they shouldn’t be afraid to run for the board.

Associations are not generally required to have written election procedures, and it is unusual for associations to have them. Some states, though, heavily regulate an association’s election process.

Is there any legal obligation to provide members notice of an election? According to Greenstein, notice of an election is governed by Minnesota statutes and/or the community’s governing documents. Both would include details such as the date, timeliness of the notice, and to some extent, even the content of it. State law and/or the governing documents also dictate the frequency of elections for an association. The same applies for requiring annual meetings. An annual meeting is typically required, but again, it ultimately depends upon the state law and the governing documents. If proper notice is not given, Greenstein noted, it could be said the election is invalid.

Can associations install term limits for their board members? Associations can install term limits for their board members if the bylaws or the declaration are amended to include term limitation. “Minnesota bylaws do typically contain term limit provisions,” Greenstein said.

What is the distinction between directors and officers? Directors are those who are elected by the members to the board, and officers are elected by directors or the membership to perform specific duties. There are usually only a few officers on a board. For example, on a seven-member board, there may only be three officers, such as a president, vice president and treasurer. Officers are usually also directors. In Minnesota, he noted, officers must be directors and must be elected by the board, not the membership.

How is the nominating committee chosen and what is its role? Most associations do not have a nominating committee. For associations whose bylaws require one, the committee is created by the community members or the board. A nominating committee’s purpose is to nominate candidates who are suitable for running for the board.

This process may be set by law, depending on the state. “In Minnesota, most governing documents allow the board or a nominating committee to select candidates for the board,” Greenstein said. Regardless of what an association’s governing documents provide, any member is empowered to nominate any member in “good standing,” whether it be the owner themselves or another. In Minnesota, “good standing” is often taken to be when someone is not delinquent on any assessments or other fees and has no outstanding association judgments to fulfill.

Are nominations from the floor or ‘write-ins’ allowed? In some states, associations may have flexibility regarding nominations from the floor and/or write-in candidates. In that regard, it is best to approach each situation carefully, and decide it on a case-by-case basis within the association’s reasonable authority. An association should not ban floor nominations or write-in candidates, Greenstein advised, otherwise it may find itself without enough candidates. In some cases, an association’s govern- ing documents may allow for a closed slate prior to a meeting, in which case nominations from the floor would not be allowed.

Can an association ban self-nomination? Greenstein said it depends on state law and the governing documents, though a court, even aside from any law, would be very skeptical of an association banning self-nomination.

What is the procedure for a member who is not nominated by the nominating committee to be listed on the ballot? It depends on the situation of that particular association and whether such a thing is even permit- ted by the association’s governing documents.

Can an association’s board endorse a single candidate or a slate of candidates? According to Greenstein, an association or board disseminating materials endorsing someone is frowned upon, even if it was allowed by state law. If board members are endorsing a candidate, it should only be personally, and endorsements should not appear on the ballot or election materials. Some states have, though, declared an official association endorsement or ‘audit’ of the various candidacies to be outside the bounds of the board’s authority.

Can associations adopt a rule that restricts certain people from be- coming board members? Generally speaking, Greenstein noted, in order to enforce something like that, it would have to be made part of the by- laws or declaration. However, situations could be taken on a case-by-case basis. For example, if a community had evidence that someone was steal- ing money, a court could validate a board’s decision prohibiting that per- son from running. Outside of that, associations are generally unable to prohibit people from running. “However, members of the association can distribute public information concerning any candidate,” he said.

Can an association request a background check on potential board members? Generally, Greenstein said, a board does not have the authority to request background checks.

How far can an association go in vetting applicants? According to Greenstein, if the bylaws specify that the only qualification to be on the board is that one must be an owner of a home within the community, then the association does not have the authority to vet anything other than a person’s status as a homeowner. In order to make it legal to vet candidates for other reasons, it may be acceptable to amend one’s bylaws to provide for that, as long as a state statute doesn’t prohibit it.

During the actual campaign phase of an election, do associations need to provide equal access to association media for candidates to campaign? “Minnesota does not govern this type of a situation; however, if an association is providing one candidate with a certain platform or access to association facilities, it should really do so with all other candidates,” Greenstein explained.

If someone believes that a candidate is making false claims, can the association notify members of this? An association would need to be very careful in addressing so-called false claims. It is really up to individual members to use their discretion in differentiating between true and false claims, Greenstein said. The only false claims an association should ad- dress are those related to the manner and location of the election, in order to maintain the integrity of the election.

Can associations require members to register in order to vote in a board election? Most governing documents would state that everyone who owns a unit and is in good standing can vote. A board could require owners to register in order to vote if that stipulation is put into the by- laws. “Some bylaws require that owners sign in at any meeting where a vote will take place. The voting process is most often left to the board’s discretion provided the board does not violate the governing documents,” Greenstein said.

How does the ballot process work and what does it involve? The ballot process differs from state to state and community to community, Greenstein noted. In general, nominations are received and candidates are announced. Then, owners receive their ballot, fill it out, and submit it according to the methods allowed by the association. Usually, ballots can be submitted in person, by mail, by proxy, or through electronic means. The votes are collected at the end of voting and are counted by the election judges. Election judges are selected prior to voting, and they must not be a candidate in the election or related to someone who is. Furthermore, an association cannot prevent anyone from voting by electronic means if the association already allows it. “Note that in Minnesota, even if provided for in the governing documents, an association cannot prevent an owner from voting simply because that owner is delinquent on his or her account with the association,” he said.

Who has access to election results? According to Greenstein, there may be governing document provisions or statutes that address access to election results, but they are usually accessible by the election judges, the board and the property manager. The candidates and their representatives may also be present for the counting of the votes. If other members are interested in re- viewing the ballots and proxies, they may submit a request to the association. Ballots and proxies are kept for a certain period of time after the election, ac- cording to an association’s governing documents or state law, but they are not usually kept in the association’s records indefinitely.

A proxy is a document that allows for someone to legally vote on another person’s behalf. For example, if an owner is out of town during the election, they may authorize someone they know to serve as their proxy holder and vote on their behalf according to the proxy. According to Greenstein, the proxy could be general and allow the proxy holder to vote according to how they see fit, or it could be specific and direct the holder to vote in a specific way. The proxy must be filled out, signed and dated by the owner, not the proxy holder. Some associations require owners to use a form specified by the association, but otherwise the owner could submit their own proxy form.

What’s the process for validating a proxy vote? “Minnesota does not require any specific process for validating a proxy,” he said. However, there are other states that limit proxy voting and make it more difficult to establish a valid proxy. Proxies can always be revoked if the owner decides to vote in person.

Is the use of proxies limited at all? “Usually not, but any restriction would need to be in the association’s governing documents,” Greenstein said.

Cumulative voting allows for a member to cast their number of allot- ted votes for a single candidate. For example, if there are three seats up for election and four candidates, a member could vote for one candidate up to three times or for one candidate twice and another candidate once, etc. Cumulative voting may or may not be allowed according to an association’s governing documents. State law may also regulate or otherwise pro- hibit such voting. “Most Minnesota governing documents do not allow cumulative voting,” Greenstein noted.

When an election results in a tie, how should the association proceed? The board would have to come up with some reasonable way to deter- mine a winner in the event of a tie, especially if it isn’t addressed in the governing documents, Greenstein explained. If candidates refuse to with- draw, options include having a run-off election, or even flipping a coin, as long as the parties in the election agree to the method beforehand.

What’s the process for an election challenge or recount? Many associations are not required to have any set process, but members may generally ask for a recount or send a notice challenging the results. Associations are advised to grant a recount and respond to challenges. If the recount results are the same, a member may then choose to file a lawsuit, though that is rare.