ARS 33-1813
Hello Dennis,
Recently our Community attempted to recall 4 of 7 of our board of directors. The results were announced at the Special Meeting (via Zoom), and the tally was shown on the screen. Many in attendance noted a glaring error. Our Community has different types of residences, and depending on what kind you reside in, determines the number of votes you have; Courthomes have 1 vote, and Single Family homes have 2 votes and cannot be split. The tally for the 2 vote residences was incorrect because it showed an odd number of votes. Several people (including myself) requested an explanation or correction from our Property Manager about how there could be an odd number of votes. No response was received, but several days later, the entire Community received an email from our PM stating the results had been posted on our Community website for all to see. The post contained every homeowner’s name, address, and how they voted. Shortly after that, the post was removed, more than likely due to complaints surrounding privacy.
Today, in an attempt to explain why everyone’s info was published, we got an email from our board president stating that per ARS 33-1813 (f), they are required by law to provide this information and MUST make them available for inspection by any association member. He further stated that this law is invasive and provides no privacy.
I interpret 1813 as an individual may request the voting results and that it must be provided, not let’s send it out to everyone whether they want it or not and expose them to potential retaliation by upset members. Has the PM and board violated any statutes by publishing that information? Am I correct in my interpretation?
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Priscilla,
The board president is absolutely incorrect in his interpretation of the law, and you are. Nothing in the law allows an association to publish the voting results and how everyone voted. What the law says is that the ballots and all associated documents must be made available for inspection upon request for one year by any homeowner. The real issue here though is the concept of secret ballots. The association controls that because the statute addresses that issue differently, so the board president had no valid argument stating that the law was invasive and provides no privacy, the board can change their governing documents to require secret ballots at any time. Because they chose not to is not the laws fault. With a secret ballot the ballot must not identify the person voting so in viewing ballots no-one can ever determine how anyone voted but can see who voted. The association is free to establish balloting by secret or non-secret ballots. If you do not use secret balloting both the association board, management company and homeowners can see how you voted and use that information against you. There are many communities that have done so and resulted in people refusing to vote for anything because of that intimidation and retaliation factor.
To post that information on a web site for everyone to see was nothing but an intimidation factor used by the association to silence members complaining about the vote. If I were you, I would ask to view the voting results to make sure that the vote tallies were in fact accurate. I personally hat non-secret balloting and will try to introduce legislation that requires association to only use secret balloting.
While you could argue that the association violated the privacy rights of all homeowners by posting the results the way they did in court it is not a clear-cut case and no specific law was violated with that posting.
Dennis
Thank you, Dennis! I should have mentioned that although our documents do not specify secret ballots when electing board members, it is always done that way. Does that not set a precedent for future voting expectations?
Clearly if you had secret ballots there is no way for the association to know legally how anyone voted never mind posting that information on the web site. All the more reason why this was an intentional act totally in the hands of the board to address. Why was this ballot measure done without secret ballots?
Dennis
Thank you….so helpful!
Sorry, Dennis…It has been brought to my attention that our Bylaws (I only checked our CC&Rs) do state that the election of Board Members shall be by secret written ballot! Does that change anything?
Thank you!
Your bylaws dictate this election process. If you are required to have secret ballots to elect board members than you are also required to have secret ballots to recall board members. See ARS 33-1812 for all elections. Your association violated their own governing documents in the application of the votes for the meeting of the members to recall the board, and could be held accountable for that failure in court or by petition to the ADRE dispute resolution process.
Dennis