Cultivating, nominating and electing members of a particular board of managers 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 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 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.
According to attorney David J. Byrne, associations are not required to have written election procedures. In fact, election procedures are often set by state statute. Additionally, the statutes mandate that an association’s bylaws contain election related provisions.
Is there any legal obligation to provide members notice of an election? Byrne stated that notice of an election is typically governed by state law and/or the community’s governing documents, even the community association’s articles of incorporation. Both would include details such as the date, timeliness of the notice, and to some extent, even the content of it. He added that state law and/or the governing documents also dictate the frequency of elections for an association. The same applies for requiring annual meetings. Byrne said that an annual meeting is typically required, but again, it ultimately depends upon the state law and the governing documents.
State law (either directly or via the governing documents) often sets the applicable notice. An association’s bylaws usually address which of the association’s officers is required to give notice, and the requisite timeframe for notice. Statute and/or governing documents should regulate all of this including method of delivery, time, location and agenda items, including any assessment changes and (if the governing documents require owner approval) any proposal to remove an officer or board member This notice may apply to both executive board meetings and owner meetings.
Can associations install term limits for members of the executive board? According to Byrne, associations can install term limits for their board members if the bylaws and/or the declaration are amended to include term limitation. “If you have a set of bylaws that does not provide for term limits, but the owners want it to, the owners can amend the bylaws to impose term limits, and it would be legal.” Bylaws do not usually contain term limit provisions, but that doesn’t mean the bylaws can’t be amended to include such limits. However, state law might mandate that an association’s bylaws must provide for the number of executive board members and the titles of the association’s officers.
Byrne explained that 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. Often, the declaration and/or the bylaws may provide that only members in good standing can be a candidate for service on the executive board. An association’s bylaws must outline the terms of office, the member’s powers, their qualifications, and how to go about electing and removing officers and executive board members, as well as how to fill vacancies.
What is the distinction between directors and officers? According to Byrne, officers are typically a subset of the executive board. He explained that there are usually only a few officers. For example, on a seven-member board, there may only be three officers, such as a president, vice president and treasurer. “All officers are board members but not all board members are officers,” noted Byrne. An association’s bylaws must state how the executive board can elect a president, treasurer, secretary and other officers and positions specified in the bylaws.
How is the nominating committee chosen and what is its role? “My experience is that most communities don’t have a nominating committee and that most communities simply solicit candidates through notices,” Byrne said. “The precise method of identifying candidates and whether there’s a nominating committee may be set forth in the state law or the governing documents,” he added.
Are nominations from the floor or ‘write-ins’ allowed? An association’s declaration and/or bylaws may address this; no matter what, a community desirous of such a thing must ensure it is consistent with provisions that might be relevant.
In that regard, Byrne has generally counseled his clients to approach each situation carefully, and decide it on a case-by-case basis within its reasonable authority. Can an association ban self-nomination? Byrne said that it depends on state law and the governing documents though he believes that a court, even aside from any law, would be very skeptical of any association’s attempt to ban self-nomination.
What is the procedure for a member who is not nominated by the nominating committee to be listed on the ballot? Byrne said that it depends on the situation of that particular association and whether such a thing is even permitted by that state’s law. “I don’t find nominating committees all that prevalent, but there may be specific things that flow from a law or governing documents that relate to that community. If you’re going to have a nominating committee, presumably there are provisions in the bylaws that talk more about that. If there aren’t, the board might have to do more analysis with regard to that,” Byrne said.
Can an association board endorse a single candidate or a slate of candidates? According to Byrne, an association and/or board disseminating material endorsing someone may be a bit sketchy, but he can’t say that it’s necessarily illegal. However, he added that in some states, an official association endorsement or ‘audit’ of the various candidacies has been ruled to be outside the bounds of the board’s authority. “Certainly, an individual board member on his or her behalf can do whatever he or she wants,” Byrne said.
Can associations adopt a rule that restricts certain people from becoming board members? Byrne said that, generally speaking, in order to enforce something like that, it would have to be made part of the bylaws or declaration. “I don’t think the board necessarily can vote to limit the type of person that can run for the board,” he said. However, Byrne added that situations could be taken on a case-by-case basis. For example, if a community had evidence that someone was stealing money, a court could validate a board’s decision, prohibiting that person from running.
Can an association request a background check on potential board members? “If the governing bylaws and declaration set forth qualifications to be on the board, without mentioning such a thing, the board likely does not have that power. You can’t bar someone from running (whether following a background check or otherwise) unless the governing documents limit a person’s right to run,” Byrne explained. “However, if someone wants to perform a background check and use that in the world of democracy to influence people’s votes, I suppose that would be okay, on a case-by-case basis, especially if it didn’t come from the association itself,” he added.
How far can an association go in vetting applicants? “A board can go only as far as it’s allowed per the bylaws and the qualifications set forth therein” or “as far as the state’s law allows,” said Byrne. He noted that, 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. Byrne added that 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 if the state statute doesn’t prohibit it.
During the actual campaigning phase of an election, do associations need to provide equal access to association media for candidates to campaign? According to Byrne, this is governed by the laws of each state.
If someone believes that a candidate is making false claims, can the association notify members of this? “The association doesn’t really have any powers to influence voters beyond what are set forth in the governing documents; however, people running for the board or their neighbors are almost free to say whatever they want to say,” said Byrne.
Can associations require members to register in order to vote in a board election? Byrne noted that most governing documents probably state that everyone who owns a unit and is in good standing can vote. He said that a board could require owners to register in order to vote if this stipulation is put into the bylaws. However, there is a lot of skepticism from courts, and appropriately so, Byrne said, regarding the ability of boards to regulate elections and to limit the democratic process. Byrne could not envision a scenario whereby an association could lawfully utilize voter registration fees as a way to generate additional revenue.
How does the ballot process work and what does it involve? According to Byrne, the ballot process differs from state to state and community to community. “There’s no set rule about it,” he said. “Presumably, a ballot has enough information on it so that the association can identify it and attach it to a particular home for proof that person had the right to vote.” In some states, Byrne said, if a unit has multiple owners, then the only owner allowed to vote on behalf of that unit will be the one who is named as such on the proper executed certificate. Furthermore, the same applies if the “owner” is a corporation, joint venture, partnership or unincorporated association—only one person will be designated to vote for their unit(s), in accordance with the governing documents.
Who has access to election results? Byrne said that there may be governing document provisions or statutes that address access to election results. “My view is that if a board wants ballots to be reviewed by owners, they can view them. If they don’t, they can’t. It’s at the board’s discretion,” he said. The statute’s and governing document’s provisions relative to an owner’s inspection of records may be relevant.
What’s the process for validating a proxy vote? According to Byrne, some states have no provision at all. “If it looks reliable, it’s good enough,” he said. Often, to be deemed valid, a proxy must be dated and must not be revocable without notice. Also, a proxy automatically terminates one year from its due date, unless it specifies an earlier date.
To illustrate cumulative voting, Byrne gave an example: “Let’s say you have three seats open and every home has one vote per home. Instead of casting three separate votes, with cumulative voting, you’re able to cast your three votes for one person. You’re able to put your votes together,” he explained. State law may regulate or otherwise prohibit such voting.
When an election results in a tie, how should the association proceed? According to Byrne, it depends. The board would have to come up with some reasonable way to determine a winner. “You’re not typically going to find something that governs that ahead of time. It’s going to be more of trying to figure out what’s best once you find yourself in that situation,” said Byrne.
What’s the process for an election challenge or recount? There really isn’t any set process, Byrne explained. He did say, though, that many states have statutes – either those directly related to a real property entity or a corporation – that specifically address the ability of members of an association to have elections reviewed and challenged.
What is the role of an election inspector, and who typically would qualify for this role? If inspectors are utilized, they are generally empowered to decide all questions pertaining to the election (i.e. eligibility to vote, results, the election process, etc.). With regard to who qualifies for the position, Byrne said there really are no requirements, but presumably the person should not be a candidate or related to any of the candidates.