LET US HEREBY RESOLVE, to Elect Board Members

LET US HEREBY RESOLVE, to Elect Board Members
By Brian P. McLean, JD, CCAL

Most associations don’t have a good written election policy. Granted, the association’s original articles of incorporation and bylaws may take perfunctory stabs at describing when elections take place, or whether board members must be owners, or the über-complex staggering of director terms, but other than these perfunctory stabs at clarity one cannot expect the articles and bylaws to tell us anything other than the obvious: owners elect board members. An association should have a good election policy that fills in the gaps.

The Table of Directors
Let’s start with a Table of Directors. The Table of Directors describes which seats current directors hold, when their terms began, and when their terms will end. Every association should have one. Here’s a simple example:

One Saruman 2010 2013
Two Smeagol 2011 2014
Three Joan of Arc 2010 2013
Four Maggie Thatcher 2011 2014
Five -Vacant- 2010 2013

The Written Election Policy
A good policy establishes and clarifies processes and procedures, collects in one place provisions spread disjointedly throughout the governing documents and statutes, and furthers important objectives for the association. When drafting a good policy, build on precedent and custom and look to existing standards. Unless there is some good reason not to, associations ought to first distribute a draft policy to owners for comment. Here are some issues worth addressing in a written election policy.

Nominating Potential Candidates
BE IT RESOLVED THAT, getting a pool of good interested candidates for volunteer service on the board is imperative. Too many of our associations lack an interested talent pool and, year after year, we are left with either the same saints who do what no one else will do or the same megalomaniacs who refuse to give up power. A good policy will establish the means of nominating director candidates and stir interest in volunteer participation. Means of nomination include establishing a nominating committee, soliciting written nominations, and taking nominations from the floor.

Establishing Candidate Eligibility
A candidate must be eligible to run and serve. A good policy will include the minimal qualifications and give either the board or a nominating committee the authority to reject ineligible candidates. One issue that confounds many associations (and some marriages) is the spouse problem. Should the spouse of an existing board member be an eligible candidate for the board? An election policy might limit the number of directors to one owner from each unit unless there are pragmatic or extenuating circumstances that compel an exception.

Closing Nominations
The written election policy may state that nominations will close at least three weeks before an owners’ meeting in order to include all potential candidates on the official meeting notice and written ballot. Note that in some jurisdictions owners have a right to nominate candidates at the owners’ meeting, and there are often good reasons to permit nominations at the owners’ meeting.

Scheduling the Owners’ Meeting
Scheduling an owners’ meeting to vote on a new slate of directors requires the association to adhere to formal notice and other requirements. So a good policy captures those requirements in writing.

A good policy may require written statements from candidates and impose time limitations on speeches during the owners’ meeting. If you are a candidate running for the board, you have a right to communicate with other owners about your interest in the board and what you hope to accomplish as a board member. If you are a unit owner receiving a campaign solicitation from a candidate, you have a right to ignore it. As a general rule, owners should be wary of any potential candidate who canvasses the neighborhood for proxies in an effort to control the election process at an owners’ meeting. I strongly prefer that owners attend owners’ meetings, reserve their votes for the owners’ meeting, and that candidates be given an opportunity to speak directly to the owners. If you must give a proxy, then give it only to a person you know and trust.

The Quorum Conundrum
Owners lose their right to elect a board member if the owners don’t establish a quorum. A quorum is the minimum number of owners, represented in person or by proxy, necessary to cast votes.

If there is no quorum, then the presiding officer should consider, nonetheless, taking a non-binding advisory vote of the owners interested enough to show up and attend the meeting. Then, if there is a vacancy, the board can exercise its right to appoint a board member to fill that vacancy. The board is not duty bound to appoint a candidate who received the most non-binding votes. A board has a duty not to appoint a candidate whose presence on the board, in their reasonable estimation, will undermine the association’s interests.

Voting methods include voting by voice, by secret ballot, by hand, by mail-in ballot, by proxy, by e-mail. Some declarations require the use of a specific method, for example, by secret ballot.

An association needs to know the number of votes that an owner may cast for each open seat. A minority of associations permit cumulative voting. With cumulative voting, if there are multiple directors being elected, an owner may cast multiple votes for a single candidate.

Where there is a dispute over the eligibility of a person to vote, consider double tallying (one tally that includes the disputed vote, one tally that does not).

Certifying Election Results
A board should always be prepared for volatility at an owners’ meeting, and an election can be volatile. Consider a policy that gives the board the right to appoint at least two people, not on the board, who collect and count votes. And to avoid controversy over the board’s appointments, give the owners present the opportunity to vote to ratify those appointments.

Record-keeping; Destroying Ballots
A board should have a policy regarding the retention of records. Once an election is certified, most boards will want to destroy the ballots. The election policy might state, “The association will maintain the voting records for one year from the date of the election.”

When all else fails, the owners can organize to remove a director from the board through a recall election. This is an extraordinary remedy that should require at least a majority vote of the total voting power of the association and, often, requires a two-thirds vote of the total voting power of the association.

Remember that your association’s governing documents may require some election procedures and prohibit others. Remember that RCW 64.34.308(7) requires at least three condominium board members (unless there are only two units) and requires that a majority of directors be unit owners. And remember that special rules apply to boards controlled by the developer “declarant”.

Boards should use their rule-making authority to adopt a written election policy. A good election policy will articulate, clarify, consolidate, and flesh out procedures for managing ad hoc elections. A good election policy will save your association time, enable your association to function more competently. A good election policy will save your association legal expenses down the road defending the election results certified by the intoxicated but ever entertaining Wally Wilcox from 3G.

(This article was first published in Community Associations Journal)

BRIAN P. McLEAN is managing shareholder at the law firm of Leahy McLean Fjelstad and a member of the College of Community Association Lawyers. He concentrates his practice in the area of community association law and speaks and writes frequently about community associations.

Brian served previously as a board member and president of the Washington State Chapter of CAI and as chair of WSCAI’s Legislative Action Committee. Brian is former lead singer, guitarist, and songwriter for the now defunct Pacific Northwest band The Acetones. His wife adores him and his children revere him.

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