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 unfounded, current board members and officers 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. Most association documents, and portions of potentially relevant laws, have safeguards in place to indemnify board members from potential liability, Miske said. 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 not Wisconsin, heavily regulate an association’s election process.
Is there any legal obligation to provide members notice of an election? Miske stated, “Yes. Elections are typically done at the annual meeting, and notice of this meeting is required to be given to all members.” State laws and/or the governing documents will dictate the frequency of elections for an association. If proper notice is not given, it can be said the election is invalid.
Can associations install term limits for their board members? Miske said they can. Associations can install term limits for their board members if the bylaws or the declaration are amended to include term limits. Bylaws do not usually contain term limit provisions, but that doesn’t mean the bylaws can’t be amended to include them, he noted. Typically, the bylaws only list the qualifications one must have in order to serve as a board member. For example, the bylaws might say that in order to become a board member, an individual must be an owner of a home within the community.
What is the distinction between directors and officers? Directors are those who are elected to the board, and officers are almost always elected by the directors to perform specific duties, he explained. There are usually only a few officers on a board. For example, on a seven-member board, there may only be four officers, such as a president, vice president, secretary and treasurer. Officers are usually also directors. In some states, but not Wisconsin, officers must be directors.
How is the nominating committee chosen and what is its role? Most associations do not have a nominating committee, Miske said. 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. Regardless of what an association’s governing documents provide, he said any member is empowered to nominate a member in “good standing,” whether it be the owner themselves or another person. Depending on the state, “good standing” is often taken to be when someone is not delinquent on any assessments or other fees and has no outstanding association judgments.
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 review the association documents before making any decision. Miske said, “In Wisconsin, if there is nothing stated in the association documents, then write-ins would be allowed.” Generally, an association should not ban floor nominations or write-in candidates, otherwise it may find itself without enough candidates. In some cases, an association’s governing 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? Miske said, “Theoretically, yes, as there is no Wisconsin law that prohibits such an act.” However, 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 documents of that particular association but generally, Miske explained, “There is nothing in the documents, and therefore the member should contact the board and advise that he or she wishes to be placed on the ballot, or what the process is for being placed on the ballot.”
Can an association’s board endorse a single candidate or a slate of candidates? An association or board disseminating materials endorsing someone might be 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, Miske advised. 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 becoming board members? Generally speaking, in order to enforce such a rule, it would have to be made part of the bylaws or declaration. Miske stated, “The common example, that appears to be enforceable, is prohibiting anyone from holding a director or officer position if they have a lien filed against their home by the association.”
Can an association request a background check on potential board members? Generally, a board does not have the authority to request background checks.
How far can an association go in vetting applicants? 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, Miske said, 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 no law prohibits it.
During the actual campaign phase of an election, do associations need to provide equal access to association media for candidates to campaign? This may be governed by state law, but if an association is providing one candidate with a certain platform or access to association facilities, Miske advised it should really do so with all other candidates.
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, he said. It is really up to individual members to use their discretion in differentiating between true and false claims, and for the candidates to identify false claims by other candidates. The only false claims an association should address 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 lot and is in good standing can vote, Miske said. A board could require owners to register in order to vote if that stipulation is put into the bylaws. An association may also be able to require voters to sign in prior to voting. However, there is a lot of skepticism from courts regarding the ability of boards to regulate elections and to limit the democratic process. It is also hard to imagine a scenario whereby an association could lawfully utilize voter registration fees as a way to generate additional revenue, he added.
How does the ballot process work and what does it involve? The ballot process differs from state to state and community to community. 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. In Wisconsin, ballots can be submitted in person or by proxy, Miske said, “unless the bylaws or articles of incorporation prohibit or limit proxy voting.” (See Section 181.0724 Wis. Stat.) 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.
Who has access to election results? 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 reviewing the ballots and proxies, they may submit a request to the association, Miske said, “which should be granted with safeguards to make sure ballots aren’t changed or added to, or go missing.” Ballots and proxies are kept for a certain period of time after the election, according to an association’s governing documents, but they are not usually kept in the association’s records indefinitely. Miske explained, “If the documents don’t give a time frame, the board should consider amending the documents to add a provision that states that the documents will be retained for only three months, or some similar timeframe.”
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. 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, Miske noted, but otherwise the owner could submit their own proxy form.
What’s the process for validating a proxy vote? Some states, like Wisconsin, have no provisions at all, he said. However, there are other states that limit proxy voting and make it more difficult to establish a valid proxy. Proxies can also be invalidated if the owner decides to attend the meeting and vote in person.
Is the use of proxies limited at all? It ultimately depends on the association’s bylaws or articles of incorporation. “If they are not banned in one of those documents, then they are allowed,” Miske said.
Cumulative voting allows for a member to cast their number of allotted votes for a single candidate, he explained. 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 prohibit such voting. “In Wisconsin, cumulative voting is allowed provided the articles of incorporation or bylaws provide for it,” Miske said. (See Section 181.0725 Wis. Stat.)
When an election results in a tie, how should the association proceed? The board would have to come up with some reasonable way to determine a winner in the event of a tie, especially if it isn’t addressed in the governing documents, Miske said. If candidates refuse to withdraw, 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. Miske advised that associations should grant recounts and respond to challenges. If the recount results are the same, a member may then choose to file a lawsuit, though that is rare.