By Ellen Hirsch de Haan, Esq with contributions from Richard Thompson
Board Election Process
The association members elect the board of directors each year as part of the association's annual meeting. For condominiums and co-ops, the law governs elections. For a homeowner's association, provisions in the governing documents determine election procedures. The homeowner's association can amend the by-laws to incorporate the procedures used for condominiums and cooperatives either as a whole or in part.
Ballot Requirements
The association prepares the ballot listing the candidates' names in alphabetical order according to last name. The second notice of election is mailed with the annual meeting package at least 14 days prior to the date of the meeting. The annual meeting package includes a proxy form, the ballot for election of directors, an inner ballot envelope, and an outer envelope for returning the election ballots. All ballots for the election of directors are returned to the association in the sealed inner envelope, which is then enclosed in the sealed outer envelope. The sealed inner envelope cannot contain any marks that would identify the voter, but the sealed outer envelope must be signed by the unit owner or shareholder.
Invalid Ballots
It is possible that a ballot for the election of the directors is deemed invalid and cannot be included in the count. Invalid ballots, along with the inner and outer envelopes in which they arrived, must be set aside and marked invalid or disregarded. Additionally, the reason for invalidation must be written on the outside of the envelope. All returned envelopes and ballots, including disqualified and invalid ballots, are part of the official records of the association and must be kept for a period of one year from the date of the annual meeting and election.
According to the Division Rules and the Condominium Act, any of the following events will result in an invalid ballot:
*The owner voted for more candidates than there are seats to be filled. An owner may vote for one candidate for each vacant seat.
*The outer envelope is not signed or does not show the address of the unit.
*The outer envelope is missing
*There is more than one ballot in the same inner envelope.
Irregular Ballots
Occasionally a member may alter his ballot or fail to follow the ballot instructions. Under state law, some alterations will not invalidate the ballot. The following examples describe unusual, but valid ballots:
*Owners can voluntarily waive their right to a secret ballot.
*The association cannot require members to sign their ballot, However, if a member chooses to sign his ballot, the ballot is valid and eligible to be counted.
*An owner's signature voluntarily placed on the inner envelope will not invalidate the ballot, even though the association cannot require a member to sign their inner envelope. Failure of a member to use the provided inner envelope is a voluntary waiver of anonymity and the ballot is counted.
*If the member added a write-in candidate on a ballot, the ballot is valid even though the law does not permit individuals to be elected as write-in candidates. When the ballot is otherwise in compliance with the law, disregard or do not count the write-in candidate, but count the votes for any other candidates indicated.
*An owner may vote for less than the number of candidates to fill all seats. Casting only one vote on a ballot, known as bullet voting, is legal and valid. The association counts the one vote on the ballot.
Election Day
The election occurs prior to the beginning of the annual meeting, but, by motion from the membership, tallying of votes can continue while the meeting takes place. Under the law, owners are permitted to watch the opening of envelopes and the tallying of the votes.
Condominium and cooperative associations:
There is no quorum requirement for an election in a condominium or a cooperative. However, in order to have a valid election, at least 20% of the ballots must be returned. Once an association receives a ballot, it cannot be rescinded. Proxies cannot be used for the election of directors, but instead are used to establish a quorum at the annual meeting and for any voting that is not related to the election of directors.
Homeowners' Associations
Elections in a homeowners' association are conducted according to the governing documents. If an issue or procedure is not provided for in the documents, then the state laws apply. In contracts to condominiums and cooperatives, homeowners' associations require a full quorum to conduct a valid election. Unless a lower number is set forth in the by-laws, a full quorum is 30% of the total voting interests and includes the number of members present at the meeting and the number of proxies received. If the documents call for a secret ballot by the membership for the election of directors, then the two-envelope system is required, even if the other condominium procedures are not followed.
Run-off Election (Condominiums)
In the event of tie votes for the last seat, a run-off election must take place during a special meeting of the members. Notice of a Special Meeting and Run-off Election must be mailed seven days prior to the meeting. A ballot is prepared showing only the two candidates who are tied for the position and the two-envelope system is used to cast the votes. The run-off election must occur between 21 and 30 days after the original date of the election.
Board Vacancies
If a vacancy occurs between elections, the board appoints a member to fill it. The board is not obligated to appoint someone who previously ran for the board or the person who received the next highest number of votes.
Stay tuned for the February Newsletter which will cover Recall of Directors!
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