Don’t get Acclimated to Election by Acclamation

May 17, 2013 by David C. Swedelson

Blog post by Sandra Gottlieb, community association attorney and Senior Partner at SwedelsonGottlieb

write-ins.jpgCalifornia community association attorneys, managers and others in the industry have differing opinions on how to properly and legally proceed with uncontested elections — elections in which the number of candidates is less than or equal to the number of board positions needed to be filled. Prior to 2006 when the election process and procedures were changed and secret elections were mandated, the answer was simple. No election was required, and candidates were deemed the elected board by way of acclamation. Since 2006, the law has changed, and elections must be held by way of a secret ballot process. Some attorneys know that the days of deeming the board elected by acclamation are over; others think the opposite.

Most associations’ bylaws do not address acclamation issues. However, even if the association’s bylaws do allow for deeming the board voted in by acclamation, the California Civil Code requires, despite contrary provisions in an association’s bylaws and/or CC&Rs, that all board member elections, including uncontested elections, are specifically required to be conducted utilizing secret balloting. The Civil Code appears to require that an association must abide by these statutory requirements by holding an election and counting the ballots even if the number of candidates running is equal to or less than the number of board seats to be filled. This seems like such a waste of time and money under the circumstances.

Unfortunately, there is really no getting around the plain language of Civil Code 1363.03, which states that “[n]otwithstanding any other law or provision of the governing documents, elections regarding… election and removal of members of the association board of directors… shall be held by secret ballot in accordance with the procedures set forth in this section.” [Emphasis added.] Apparently, however, not all community association attorneys agree that the word “shall” is mandatory, and they argue that deeming the board voted in by acclamation would seem to be an appropriate and common sense solution, saving the association money on having to hold an election in which the results are not in question. On its face, this seems reasonable. The problem with this position, however, is that it overlooks the fact that an association already has to properly budget its money and time to be prepared to handle typical secret ballot elections, as secret ballot elections are a statutory requirement. Further, election by acclamation would inhibit an owner’s right to self-nomination from the floor, if allowed under the association’s governing documents, at the meeting where the ballots are counted. And, again, there is that directive that an association’s elections “…shall be held by secret ballot…” Civil Code Section 1363.09 allows a member to bring an action for violation of secret ballot voting requirements, and penalties may be assessed in the amount of $500 for each violation (not to mention the member’s fees and costs payable by the association if the member prevails). Decisions made by a board elected by acclamation may also be subject to being overturned by a court if it is found that the board was not properly elected.

The language of the Civil Code mandating secret ballot elections weighs heavily against the concern some have over associations wasting their money. As mentioned above, an association should have money and time allocated to the election procedures irrespective of the number of candidates running for the board. Furthermore, complying with the statutory requirements seems fundamentally more important than the inconvenience of going through the election process. Whatever an association chooses to do regarding a potential election by acclamation, it is always best to consult with the association’s legal counsel on the matter and get acclimated on the topic.