Whereas, California Civil Code Section 1363.03(a), with effective date of October 11, 2011, requires the adoption of rules regarding Election Procedures; Appointment of Election Inspectors, Voting by Secret Ballot; Proxy and Ballot Instructions; Publication of Election results and Retention of Ballots; and
Now, therefore, be it resolved that 1600 Hamilton Place Community Association does hereby adopt the following rules:
A. Effective Date
These rules shall become effective upon adoption at the noticed board meeting.
B. Vote by Secret Ballot for Specified Matters
- Notwithstanding any other law or provision of the governing documents, the following matters require a vote by secret ballot in accordance with the procedures set forth herein:
- Election and removal of members of the Board of Directors;
- Amendments to the governing documents; or
- The grant of exclusive use of common area property pursuant to California Civil Code Section 1363.07.
- This rule does not limit the authority of the Board of Directors to impose assessments sufficient to perform its obligations in accordance with the provisions of the governing documents and California Civil Code 1366.
- This rule does not limit the Board of Directors from making such recommendations to the membership in regard to all matters, including those matters covered under this Section B, with the sole exception of advocating the election or defeat or any candidate that is on the election ballot, to the extent deemed necessary to comply with duties of the Association as imposed by the governing documents and the law.
C. Fairness in Elections
- The Association shall ensure that if any candidate or member advocating a point of view is provided access to association media, newsletters, or Internet websites during a campaign, for purposes that are reasonably related to that election, equal access shall be provided to all candidates and members advocating a point of view, including those not endorsed by the Board, for purposes that are reasonably related to the election. The Association shall not edit or redact any content from these communications, but may include a statement specifying that the candidate or member, and not the Association, is responsible for that content.
- The Association shall specify the qualifications for candidates for the Board of Directors, and any other elected position, and procedures for the nomination of candidates. Any member may nominate himself or herself for election to the Board of Directors as a candidate in the ballot, by giving timely notice to the Board. The By-Laws provide in Article V, Section 1 that directors must be members of the Association.
- California Civil Code Section 1363.03(a) requires that the Association shall specify the qualifications for voting, the voting power of each membership, the authenticity, validity, and effect of proxies, and the voting period for elections, including the times at which polls will open and close.
- The qualifications for voting, the voting power of each membership, and the effect of proxies shall be as stated in the governing documents of the Association.
- All ballots and voting materials shall be provided to members not less than 30 days prior to the time of the meeting of members or Board of Directors at which the votes will be tabulated. Written ballots must be returned and received by the inspector(s) no later than one hour prior to the scheduled time at the meeting at which the votes will be tabulated.
- Each ballot received by the inspector(s) of election shall be treated as a member present at a meeting for purposes of establishing a quorum.
D. Use of Association Funds for Campaign Purposes
- Association funds shall not be used for campaign purposes in connection with any Association board election. Association funds shall not be used for campaign purposes in connection with any other Association election, except to the extent necessary to comply with duties of the Association imposed by law.
- For the purposes of this Section, the term "campaign purposes" includes, but is not limited to, the following:
- Expressly advocating the election or defeat of any candidate that is on the Association election ballot.
- Including the photograph or prominently featuring the name of any candidate on a communication from the Association or the Board, excepting the ballot and ballot materials, within 30 days of an election, provided that this is not a campaign purpose if the communication is one for which subdivision (a) of Section 1363.03 requires that equal access be provided to another candidate or advocate.
E. Inspector of Election
- The Association's Board of Directors shall, for each matter to be voted on falling under Section B, select either one or three independent persons to act as inspector(s) of election. The inspector(s) of election selected by the Board of Directors may include, but shall not be limited to:
- The Association Manager (as allowed by California Civil Code Section 1363.03(c)(2);
- A volunteer poll worker with the County Registrar of Voters;
- A licensee of the California Board of Accountancy;
- A notary public;
- A member of the Association, who may not be a member of the Board of Directors or a candidate for the Board of Directors.
- The inspector(s) may not be a person who is currently employed or under contract to the Association for any compensable services unless such person, like the Association Manager, is expressly authorized by these Rules adopted pursuant to California Civil Code Section 1363.03(a)(5).
- The inspector(s) of election shall do all of the following:
- Determine the number of memberships entitled to vote and the voting power of each.
- Determine the 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.
- Determine the tabulated results of the election.
- Perform any acts as may be proper to conduct the election with fairness to all members in accordance with Civil Code Section 1363.03, the Corporations Code and the governing documents of the Association regarding the conduct of the election that are not in conflict with Civil Code Section 1363.03.
- The inspector(s) 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(s) of election is prima facie evidence of the facts stated in the report.
No proxies will be permitted during any election requiring the use of secret ballots.
G. Secret Voting Procedure
Ballots and two preaddressed envelopes with instructions on how to return ballots shall be mailed by first-class mail or delivered by the Association to every member not less than 30 days prior to the deadline for voting. In order to preserve confidentiality, a voter may not be identified by name, address, or lot, parcel or unit number on the ballot. The Association shall use as a model those procedures used by California counties for ensuring confidentiality of voter absentee ballots, including all of the following:
- 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 prints and signs his or her name and indicate the address or separate interest identifier that entitles him or her to vote.
- The second envelope is addressed to the inspector of election, who will be tallying the votes. The envelope may be mailed or delivered by hand to a location specified by the inspector of election. The member may request a receipt for delivery.
H. Determining the Voting Outcome
- All votes shall be counted and tabulated by the inspector of election in public at a properly noticed open meeting of the Board of Directors of the members. A quorum need not be in attendance at such a meeting. Any candidate or other member of the Association may witness the counting and tabulation of the votes. No person, including a member of the Association, a member of the Board of Directors, or an employee of the management company, shall open or otherwise review any ballot prior to the time and place at which the ballots are counted and tabulated. However, the inspector of election, or his or her designee, may verify the member's information and signature on the outer envelope prior to the meeting at which the ballots are tabulated.
- The tabulated results of the election shall be promptly reported to the Board of Directors of the Association and shall be recorded in the minutes of the next meeting of the Board of Directors and shall be available for review by members of the Association.
- Within 15 days of the election, the Board shall publicize the results of the election in a communication directed to all members.
I. Custody of Election Materials
- The sealed ballots at all times shall be in the custody of the inspector(s) of election or at a location designated by the inspector(s) until after the tabulation of the vote, and until nine (9) months after the election, at which time custody shall be transferred to the Association. In the event of a recount or other challenge to the election process, the inspector (s) shall, upon written request, make the ballots available for inspection and review by Association members or their authorized representatives. Any recount shall be conducted in a manner that shall preserve the confidentiality of the vote.
- After transfer of the election ballots to the Association, election ballots shall be stored by the Association in a secure place for no less than one year after the date of the election.
In the event of a conflict between these rules and any provision of the governing documents, these statutorily mandated rules shall control.