Associations: A third party managing elections averts fraud

Question: Our homeowners association follows the election rules in Civil Code section 5115, sending out ballots and two pre-addressed envelopes with instructions by first-class mail to every owner 30 days before the voting deadline. It also follows Civil Code section 5120, in which all votes are counted and tabulated by the inspector of elections in public, at a noticed open meeting of the board. All owners can witness counting and tabulation of votes.

Still, our association experiences utter chaos because the interfering manager takes control and starts disqualifying votes. Inevitably her favorite board directors win. There’s more hanky-panky when the association’s attorney sticks his nose into the fray by always getting the last word.

The election inspector, manager, attorney and certain board directors are all buddies who hijack the process every time. Then they hoard the voted ballots never to be seen again. When they choose companies to assist us with the election, they’re all members of the same industry groups. They’ve all mastered rigging votes; everything’s worked out before the count ever starts. We need an entity that’s wholly independent and unbiased. What do we do now?

Answer: Start by understanding the rules that homeowners associations must follow so that you can take action when your association makes impermissible deviations. Elections in general are codified in Civil Code sections 5100 to 5145. Certain elections shall be held by secret ballot in accordance with procedures set forth in Article 4, such as board elections and those pursuant to Civil Code section 5100. Rules pertaining to elections that associations shall adopt are located in Civil Code section 5105.

Under Civil Code section 5110, the association shall select an independent third party or parties as an inspector of elections. The number of inspectors of elections shall be one or three.

An independent third party includes, but is not limited to, a volunteer poll worker with the county registrar of voters, a licensee of the California Board of Accountancy or a notary public. An independent third party may be an owner, but may not be a director or a candidate for director or be related to a director or to a candidate for director. An independent third party may not be a person, business entity or subdivision of a business entity who is currently employed or under contract to the association for any compensable service.

The inspector or inspectors of elections shall do all of the following:

• Determine number of memberships entitled to vote and voting power of each;

• Determine authenticity, validity and effect of proxies, if any;

• Receive ballots;

• Hear and determine all challenges and questions in any way arising out of or in connection with the right to vote;

• Count and tabulate all votes;

• Determine when the polls shall close consistent with the governing documents;

• Determine the tabulated results of the election;

• Perform any acts as may be proper to conduct the election with fairness to all voters in accordance with the common interest development act, the Corporations Code and all applicable rules of the association regarding conduct of the election that are not in conflict with Civil Code sections 5100 to 5145.

Sealed ballots shall be in the custody of the inspector at all times or at a location designated by the inspector until after vote tabulation and until the time allowed by Civil Code section 5145 for challenging the election has expired. Then, custody shall be transferred to the association. If there is a recount or other challenge to the election process, the inspector shall, upon written request, make the ballots available for review by an owner or the owner’s authorized representative. Any recount shall be conducted in a manner that preserves the confidentiality of the vote, according to Civil Code section 5125

Because any report made by the inspector is prima facie evidence of facts stated in the report, it is imperative that such individuals and/or their companies are vetted to be free of conflict. An inspector of elections shall perform all duties impartially, in good faith, to the best of the inspector’s ability, and as expeditiously as possible. If there are three inspectors, the decision or act of a majority shall be effective in all respects as the decision or act of all, according to Civil Code section 5110.

For more than 20 years, the League of Women Voters, an independent unbiased third party, has managed elections for universities, neighborhood associations, public school districts, unions, housing developments and homeowners associations. They produce ballots, conduct candidate and issue forums, administer elections and assess the validity of previous ones. Because of the governing documents, each homeowners association is unique, therefore each election is customized accordingly. Costs are tailored to each association’s needs. All election managers and staff are trained, reliable and dedicated to the integrity of the election’s outcome. For more information contact Raquel Beltran, executive director of the League of Women Voters Los Angeles, at (213) 368-1616.

Zachary Levine, partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian JD, P.O. Box 10490, Marina del Rey, CA 90295 or noexit@mindspring.com.