Sample Questions Regarding Meetings according to Robert's Rules of Order and The National Association of Parliamentarians
QUESTION: Is it legal for an HOA to keep track of whether a homeowner voted in the election of board members?
ANSWER: The Davis-Stirling Act prohibits knowing how members voted but nothing forbids tracking whether they voted. Whenever I find an election issue that is unclear, I look to see what California does.
UNSIGNED BALLOT ENVELOPES
QUESTION: What happens if owners forget to sign the outer envelope? Do they lose their vote? Can we return the envelope to the owner for signature?
ANSWER: Normally, the owner loses his/her vote. For an envelope to be valid, voters must sign their names in the upper left hand corner of the outer envelope. Civil Code 1363.03(e)(1). This allows the Inspector to verify a voter's eligibility. If the envelope is unsigned, that opens the door to voter fraud, i.e., anyone could have submitted the ballot. Accordingly, when an envelope is unsigned, the Inspector sets it aside unopened and uncounted.
Irrevocable. Once a ballot is received by the Inspector of Elections, it is irrevocable.Civil Code 1363.03(f). As a result, returning an unsigned envelope is not a good option because it can be changed or revoked. This creates a problem for associations because quorum requirements are so difficult to meet, they usually need every vote. In addition, people don't like the idea of losing their vote because they forgot to sign the envelope.
Possible Solutions. One solution is to notify owners who forgot to sign and have them go to the Inspector's office, show I.D. and sign the envelope. Unfortunately, this creates administrative costs for the association, and may be inconvenient or impossible for owners (especially those who are out of town). A solution implemented by Inspector Danielle Jones, owner of HOA Elections, involved the use of an affidavit (a signed declaration under oath). The declaration attests to the authenticity of the ballot. This is then attached by the Inspector to the envelope. The envelope is thus "signed" without changing or revoking the ballot. Since signed declarations can be done by mail, fax and e-mail (with a pdf attachment of the signed declaration), they are more convenient for owners.
Logistics. Inspectors of Election are not required by statute to enact any solutions to unsigned envelopes. Depending on the association, the time and cost of contacting forgetful owners may not be justified. For those associations who want a solution to the problem, boards should talk to their Inspector of Elections to find out if the Inspector can follow up with owners and what the costs would be.
Davis-Stirling.com by Adams Kessler PLC
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- An improperly run election wastes everyone's time and money. It might even get the wrong people elected. We can help you make sure the election is run properly and according to law.
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- Protect the rights of your homeowners. Make sure the right candidates are elected to your Board by following the rules set by the Davis Sterling Act.
We Study This Stuff So You Don't Have To
Steps to running a proper election in compliance with the Davis Sterling Act includes:
- Preparing ballots for tabulation at Ballot Measure meeting
- Attendance at the meeting as Inspector of Election as follows:
- Open poles, determine quorum, close poles, open returned envelopes, count and tabulate all votes,
- Provide immediate election results and Report of Inspector of Election.
- Receiving and securely storing all returned ballots,
You can get a lot of information at www.davis-sterling.com
SUMMARY OF SUGGESTED GUIDE & FORMS FOR CERTAIN MOTIONS
(Ref: RONR In Brief – p. 19-51)
Most Motions Require MSSDVR :
1. Main Motion (if no other business on floor); *
2. Second (unless made by assigned Committee, otherwise most motions);
3. State Motion (Chair or ask recorder to read it);
4. Discuss, (unless Undebatable)*;
5. Vote (“Are you ready for the question?,” “All in favor reply YES, against reply NO, (or Aye, Nay) (Do NOT call for Abstain- members must announce it).
6. Report the result (Motion to _____ carried unanimously, by majority, or failed.
| I MOVE TO:
|| Action already taken (implies endorsement/approval)
|| Budgets, policies, procedures, resolutions
|| Close the meeting (priv/undebatable)* (high priority)
|| Pending motions, change previous motions, or draft (sub/debate)*
|| Officers, committee members
|| Minutes, contracts, employees, proposals
|| Generally unanimous agreement without motions or objections
|| Minutes or other written materials before final approval
| Recommendations, proposals
| Requests, proposals, demands
| Board members or officers
| Or extend debate (sub/undebatable -- 2/3 vote)*
| Persons for positions or office
| Definitely, (set date) or indefinitely (no date) (sub/debatable)
| Close debate on motion and call for vote (sub/undebatable -- 2/3 vote)
| Confirm action taken previously in Executive Session/meeting
| To Executive Session, for break or disturbance (priv/undebatable)
| Acknowledge Reports without action (not necessary)
| To committee or higher group (sub/debatable)
|| Action to a higher authority – is NOT a motion
| A motion approved earlier in same meeting – from the winning side.
|| Return to regular meeting following Recess or Exec. Session
| Action taken at a previous meeting (majority if noticed/2/3 other)
| Positions, platforms, legislation (others’ actions)
| Later this meeting (sub/undebatable) (Postpone is better)
| Policies, procedures temporarily (be cautious)
| Motion pending on floor
* Sub (subsidiary to Main Motion) *Priv (privileged /ranked higher over Main motions)
* Undebatable, Debatable *Majority vote unless indicated otherwise.
See NAP publication: “The a-b-c’s Of Parliamentary Procedures” $6.00
ASSOCIATION ELECTION FREQUENTLY ASKED QUESTIONS:
1. I need new election materials – what can I do?? Contact your Inspector of Election.
2. I am a new owner – am I entitled to vote?
According to Corporations Code 5611 “…The bylaws may provide or, in the absence of such provision, the board may fix, in advance, a date as the record date for the purpose of determining the members entitled to vote at a meeting of members...If no record date is fixed, members on the day of the meeting who are otherwise eligible to vote are entitled to vote at the meeting of members...”.
3. Can I bring my ballot to the meeting?
Yes, you may bring your ballot to the meeting. However, you still need to follow the double envelope system.
4. What exactly has to be provided in the upper left hand corner of the outer secret ballot envelope?
The following must appear in the upper-left hand corner of the outer secret ballot envelope:??• Written or pre-printed voter’s name?• Written or pre-printed voter’s address or separate interest identifier that entitles him or her to vote (such as parcel, unit or lot number - can simply be the voter's full address)?• Voter’s signature.
5. Can I give my ballot to a friend to turn in at the meeting?
Generally the answer is no. Most election rules and voting instructions provide that ballots are to be returned to the Inspector of Elections. Giving your ballot to a friend would usually not be in compliance with those documents. In addition, ballots must remain in a secure place and unopened until the official vote-counting meeting. No person, including a member of the association or an employee of the management company, may open or otherwise review any ballot prior to the time and place at which the ballots are counted and tabulated. Civil Code §1363.03(f)
6. Do I have to sign the envelope?
Yes. According to Civil Code 1363.03 “…The ballot itself is not signed by the voter, but is inserted into an envelope that is sealed. This envelope is inserted into a second envelope that is sealed. In the upper left hand corner of the second envelope, the voter shall sign his or her name, indicate his or her name, and indicate the address or separate interest identifier that entitles him or her to vote.”
7. Do I have to sign the envelope if I bring it to the meeting?? Yes, you are still required to fill out and sign the outer envelope.
8. Can I revoke or change the ballot I already sent in?
No you may not. According to Civil Code 1363.03 “Once a secret ballot is received by the inspector of elections, it shall be irrevocable.”
9. Three people that own the home – who gets to vote?
According to Corporations Code 5612 “(a) If only one votes, such act binds all; (b) If more than one vote, the act of the majority so voting binds all.”??
10. Who is the Inspector of Elections?? Since 2006, Associations are required to appoint an independent third party to act as the Inspector of Elections.
11. What does an Inspector of Election do?
(A) Determine the number of memberships in good standing and entitled to vote and the voting power of each. ? (B) Receive ballots.
(C) Determine the authenticity, validity, and effect of proxies, if any.? (D) Hear and determine all challenges and questions in any way arising out of or in connection with the right to vote.? (E) Count and tabulate all votes.? (F) Determine when the polls shall close, consistent with the governing documents.? (G) Determine the tabulated results of the election.? (H) Perform any acts as may be proper to conduct the election with fairness to all members in accordance with this section, the Corporations Code, and all applicable rules of the association regarding the conduct of the election that are not in conflict with this section.
An inspector of election shall perform his or her duties impartially, in good faith, to the best of his or her ability, and as expeditiously as is practical. If there are three inspectors of election, the decision or act of a majority shall be effective in all respects as the decision or act of all. Any report made by the inspector or inspectors of election is prima facie evidence of the facts stated in the report.
12. QUESTION: What does it mean that members can "witness" the counting of ballots?
Civil Code 1363.03(f) states that all votes shall be counted and tabulated by the inspector or inspectors of election or his or her designee in public at a properly noticed open meeting of the board of directors or members. Any candidate or other member of the association may witness the counting and tabulation of the votes.
Because the statute does not define "witness" we can turn to California's election code for guidance. State and county guidelines are fairly uniform that observers must be allowed sufficiently close to observe the process but not the actual votes on the ballots. This means that observers cannot stand over the shoulder of a ballot counter. Instead, they must sit or stand at a reasonable distance and observe the counting process.
13. Can the Inspector of Election give me legal advice?
No, most Inspectors of Election are not licensed attorneys and cannot give you legal advice.