Election rules help please
We are about to have our election which 11 are running for 7 positions. Our ByLaws state “The annual meeting of membership shall be the first Monday in May”. So: ballots were due in by 4/27. Board announced votes will be counted Sat 5/1 and all candidates could be present to observe, then our annual meeting will be Sun 5/2 where board will be announced. Our Bylaws state: “At this meeting the Election Committee will report the results of the election. The elected Board members will elect the officers and will seat the new Board of Directors.” So I guess no big deal they are having meeting on Sun vs Mon, but since votes counted day before the Annual meeting is there any legal obligation for the results to be told to the 11 candidates? Is there any other legal guidance you can refer me to as to WHO gets to be the President vs all the other officers? Like is the top vote getter the Pres? By Laws don’t say and in past years (according to those that can remember we’ve ever had an election in the past) the group gets together and says ok, I think David should be our president…???!! Thank you again for your help!
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Carol,
Your bylaws are typical to all similar communities. The community elects the board for whatever term the bylaws specify and the new board then elects the officers of the association for one year terms. That ensures that any new board member elected in any specific year has an equal opportunity to run and get an officer position.
While Arizona law requires associations to provide for both in-person and absentee ballots the pandemic has caused most associations to eliminate in person meetings. So while technically any association that does not provide for in person voting at the annual meeting of the community is violating the law, there is probably no court that would find the association culpable under these unprecedented circumstances.
There is no legal requirement for the association to inform the candidates other than the announcement to the entire community. One issue that is important is that the association is required under the law to retain all ballots and related documentation including any signed ballot envelopes as association records for one year and make those records available to any member wishing to see them. If anyone questions the validity of the ballot count then they can request to see all the ballot material including the ballots them selves in that year after the election.
Dennis
Hi,
Do you know how long a board member can serve as director? Can the director of the board vote himself as president?
Are there two subject areas involved:
1. Board of Directors
2. Assigned or voted persons by the the Board for positions of: President, Vice President, Treasure and Secretary.
The current President of the Board has been in place for over 10 years! Is this allowed?
He always somehow gets himself appointed as President.
Thanks
John,
I know of no governing document that ever established term limits for board members. I tried one time in the past to get a bill limiting Common Interest Community boards member term to 4 consecutive terms just like our State Senators and Representatives, but it never saw the light of day. The members of the association elect the board members for whatever term defined in the bylaws. The elected board then elect the officers every year. If no one is willing to step up and contest the automatic election of the president that will continue as long as he wants. What I see in many communities is that elections are actually not held every year like they are required in State law using the excuse that the association called a meeting but did not get a quorum of members to respond. The law actually states that meeting of the members must be held annually. not just called. It can only be held if a quorum is present. I’ve seen communities that had board members on the board for 15 years without ever holding an election once in all of those 15 years. So they continue the past board members for another year. For 15 years they ignored the law and got away with it. That community had a quorum requirement of 60% of all homeowners. The bylaws allowed the board to change that number to whatever they felt appropriate but they never did because they liked their arrangement of never having to be held accountable to the members. When the board population in a community does not turn over often that always causes problems in these communities because the board members feel empowered to do what ever they want with impunity.
Dennis
How am I able to get a hold of last years election results? Is there a minimum of members required to elect the board members?
John,
Simply submit a records request to see all ballot material associated with last year’s election as long as one calendar year has not passed since that election. The association is required by law to retain those records for one year and make them available upon request. There is no minimum number of votes required, whoever gets the most votes cast in-person and by absentee ballot wins.
Dennis
Nominations for people that want to run for the board closed April 7th. Our annual meeting is April 25th. It’s April 12th and we haven’t heard who’s running for the board yet.
Is there a requirement for how long voting is to be open for? Also if quorum isn’t met, can a homeowner ask for an extension of the Annual Meeting to attempt to meet quorum for a period of time and if so, what is the amount allowed?
Michael,
The law requires that the association provide absentee ballots between 50 and 10 days prior to the election. While the 10 day limit is extremely short that is the current law allowance. Delaying the delivery of the ballots serves only one purpose and that is to limit the turnout and limit the amount of time members get to talk about the candidates and truly consider the options. This could also be a sign of the incompetence of the community manager and may not reflect a hidden agenda of the board at all. The law requires that anyone wising to speak prior to casting their vote must be given the opportunity to do so at the meeting. Ask the question why the ballots were delivered so late, if the answer is they complied with the law then do not vote for any sitting board member. If the look to the community manager and ask why then follow up with a question as to what the board will do about the community manager if they cannot not get ballots out with more time. Cast your votes based on the answers given. Your vote is your most powerful tool, use it wisely to make a better community.
Dennis
Thanks for your answer. Our HOA does have a management company. The meetings have been held with Zoom for some time now and so will this annual meeting as they (management company) have put up a link to register in their portal. The meeting is scheduled for 7PM and if it was like last year if I recall correctly you couldn’t vote because they closed it earlier in the day.
Quorum wasn’t established last year and hasn’t for a long time. How do you go about asking for an extension to meet quorum? Am I as a homeowner allowed to do so? If so, how long can I ask for.
Thanks again.
Michael,
The association is required by law to hold a meeting of the members every year. Calling a meeting and not achieving a quorum does not satisfy that requirement of the law because without a quorum the meeting cannot be held, and no actions can be taken. The association is therefore required to reconvene that meeting until a quorum can be achieved or the reduce the quorum requirements to allow the meeting to be held. The association has absolutely no right to prevent the members from holding an election for the board members. If a quorum is not achieved, the meeting must be reconvened within 30 days of the previous called meeting. Remember the meeting is for the members not the board so any member can insist on this action from the floor. Never agree to adjourn the meeting, that implies that the meeting was held and is now ended.
Dennis
Dennis,
Your reply
“The association is therefore required to reconvene that meeting until a quorum can be achieved or the reduce the quorum requirements to allow the meeting to be held. The association has absolutely no right to prevent the members from holding an election for the board members. If a quorum is not achieved, the meeting must be reconvened within 30 days of the previous called meeting”
I’m stumped here because when quorum hasn’t been met in the past, they announce a quorum hasn’t been met and due to that, the meeting can’t be held. At that point they have never had another annual meeting until the next annual meeting 12 months later. (In the last annual meeting April 26,2021 they pushed it to April 27,2022) It’s been this way every year.
But based on your answer it should be held within 30 days of the previous meeting.
Is there a law being broken or just a procedural protocol error if the meeting isnt held within the 30 days of the last meeting that didn’t meet quorum?
Thanks again!
The law in ARS 33-1804 requires that a meeting of the members be held every year. If they do not hold a meeting because the quorum was not achieved, they are violating that law. A meeting that is called but that does not satisfy quorum is not held.
Dennis
Dennis,
Thanks for the clarification. I just want to make sure I fully understand and I’ll give a general situation.
Annual Meeting April 13th
Annual Meeting doesn’t meet quorum.
Board President states quorum not met and we can’t hold the annual meeting.
At this point the Board President has two choices
1. Reset meeting 30 days from today (based on April 13th)
or
2. Reduces the requirement to make quorum.
Let’s play out option 2.
The bylaws state to meet quorum 20% is the threshold to meet quorum.
Does the board at that meeting have the ability to change the threshold % or can I as a homeowner have the right to pursue this during the meeting?
I guess I’m trying to find out who has the authority to change the bylaws and does it need community approval?
Thanks again!
Mike the authority to approve changes to the bylaws will be defined in the bylaws themselves. Some allow the board to do it with a simple vote other require the community to vote to modify the bylaws.
State law does not adddress standard approaches to modifying bylaws.
Dennis
I have several questions relating to this topic. The HOA’s bylaws call for a nominating committee, but also specifically allow nominations from the floor at the annual meeting. With meetings online and secret ballots due in advance of the meeting, do the AZ statutes preclude HOA’s from requesting nominations from the floor? If HOA members choose a write-in candidate on the ballot, does it have to be considered? Can a secret ballot be submitted by email as an attachment? Are the HOA management companies generally responsible for receipt and count of election ballots without overseers? Can a nominating committee choose specific candidates to move forward onto the ballot as long as the number of candidates is covered? For example, 5 candidates are interested in 3 board positions, and the nominating committee only moves forward with 3 candidate names for consideration onto the ballot.
Cars,
Basically, any nomination committee must put forward on the ballot any qualified candidate wishing to run. The scenario that you proposed where the committee only put on the ballot three candidates for three positions would be essentially electing the board and no committee or board has the power to do that. That would be totally illegal in any state. As for nomination from the floor the first question is yes, a community can do that but must have the required quorum present to do anything like that. Qurum can be satisfied by the combination of in-person attendees and all absentee ballots submitted. If the in-person attendees do not independently satisfy the quorum then they cannot take any action, including submitting nominations that were not on the ballot that the absentee members voted on.
Arizona law requires that association provide for voting both in-person and absentee ballots they do not have the right to exclude either of those options. While the law does not specifically address virtual meeting mostly because they were never really needed prior to the pandemic, a virtual meeting is essentially equivalent to an in-person meeting and is acceptable. What your association is doing is preventing your community from voting in person at the virtual meeting which violates the law. There is nothing wrong with requiring the absentee ballots from being due or even counted the day before the meeting, but the association must allow anyone who wishes to vote at the meeting must be allowed to do so. The law does not address write-in candidates, if your bylaws or CC&R’s allow them, they must be provided for. While management companies typicall receive rthe ballots for the community many associations have a group of independent members along with the community managers count the ballot. No management company should ever be trusted in counting or handling the ballots unsupervised. None of them can be trusted to this task. They have far too much at stake to trust that they will not manipulate the vote to ensure that they get the outcome that they want irrespective of the true votes of the community. While the law does not specifically require oversight, this is why the law requires that all ballots and related material be retained for one year and must be made available for any member to review irrespective of the secret ballot or not.
Dennis