Posted by Irvine Sign Company
Posted by Irvine Business Sign Company
Q: I have 2 questions. First, a petition to recall a board member received sufficient signatures and the recall election was scheduled. The board appointed three homeowner inspectors, each of which either circulated or signed the recall petition. Is it legal and/or ethical for them to participate in the counting of the recall ballots?
Secondly: The recall petition called for both the recall election and the election of candidates to replace the board member — if the recall was successful — to occur at the same meeting. The board and management company have refused to ask for candidates and the agenda for the recall meeting says nothing about the election of candidates. Ballots containing the recall vote only have already been sent to homeowners. Isn’t the board required to follow the petition? — S.P., Banning
A: Election inspectors may be volunteers, so long as they are “third parties.” A third party under Civil Code Section 5110(b) cannot be a director, candidate or someone related to a director or candidate. It is hard to ask a volunteer not to have a point of view, but in a hotly contested election, the board should be careful to try to have a mix of views on the inspector panel, to give greater comfort to the members that the election is being conducted fairly.
As to the recall election, the petitioners were wise to ask for voting to fill the vacancy if the recall vote succeeds. The board is violating the petition and is harming the association by not asking for a conditional election of the replacement at the same time. Corporations Code Section 7224(a) bars boards from filling vacancies created by recall membership vote, so recalls should always be accompanied by a conditional election, meaning that ballots will give voters the opportunity to vote for a director to fill any vacancy created by a successful recall.
Even if a recall petition does not ask for a simultaneous election for replacements, the association should include it anyway in the ballot in order to prevent a possible situation where the board is recalled but there are no replacements.
Q: We recently had board elections. Our board allows for up to nine elected directors. Five candidates submitted timely nomination forms, two submitted late and one submitted his candidate nomination form on the day of our annual meeting (election from the floor).
Can this eighth candidate vote himself to the board with only nine votes? Does this mean that a person might vote himself to the board with just nine votes from the floor at the annual meeting? — V.D., Solana Beach
A: Civil Code 5105(a)(3) protects the right of an eligible member to nominate themselves, so yes, someone could show up on the date of the election and announce themselves as a “write-in” candidate. Since it appears your association allows cumulative voting, then yes, that person can vote for themselves nine times.
If he is the ninth place vote recipient, then yes, he could be elected. Your question illustrates exactly why members of associations should make sure they vote because sometimes there is a good reason why nobody votes for a particular candidate!
Kelly G. Richardson CCAL is a Fellow of the College of Community Association Lawyers and Senior Partner of Richardson Ober PC, a California law firm known for community association advice. Send questions to Kelly@richardsonober.com.
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Posted by Irvine Sign Maker
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