Campaigning by Candidates
Directors Can Campaign. All candidates, board members, and homeowners have the right to campaign for and against candidates at their own expense. They can support or oppose candidates, amendments, assessments, etc.
Membership List. Candidates have the right to receive a copy of the membership list when campaigning for the board.
Campaign Liability. Candidates shall, by statute, indemnify and hold the corporation, its agents, officers, directors, and employees, and hold them harmless from all demands, costs, including reasonable legal fees and expenses, claims, damages, and causes of action arising out of such material or any such mailing or publication. (Corp. Code § 7525)
Candidates' Forum
Some associations schedule a "Meet the Candidates" forum either before or shortly after the ballots are mailed to the members. This does not violate the restriction on using association funds for campaign purposes, since the forum is not an advocacy for any particular candidate but rather an opportunity for members to meet all candidates and hear their positions on issues facing the community.
Forum Optional. The law does not require a "Meet the Candidates" meeting, and nominees are not required to campaign for office. As a result, associations may dispense with the forum if the election is uncontested. In addition, associations may want to amend their documents to dispense with balloting in uncontested elections. If the association chooses not to host a forum, nothing prevents the candidates from organizing one and reserving a common-area meeting place at no cost.
Format of the Forum. In the event a forum is held, the format is entirely up to the hosting party. The following formats are common:
- Statements Only. In this format, the association serves finger foods or wine and cheese, and each candidate makes a statement (or short speech) explaining why members should vote for them. Once finished, the candidates mingle with members and answer questions. This keeps everything casual and friendly.
- Questions and Answers. This format allows each candidate to make a statement on why members should vote for them, and then takes questions from the audience. Sometimes, this can become heated and contentious.
- Written Questions Only. Some associations will take written questions from the audience and then have each candidate give a brief response to avoid verbal jousting between candidates and members.
Ballot Issues
"Sample" Ballots. In addition, anyone can send campaign materials, including a sample ballot premarked with their recommended votes. If they send a campaign ballot, the sender must be clear that it cannot be used in place of the official ballot. To avoid any confusion, the ballot should have "SAMPLE" stamped across it. If members use campaign ballots in place of official ballots, the Inspectors of Election will void them.
Soliciting Ballots. Although owners may solicit proxies, it is improper to solicit ballots, to mark other owners' ballots, or to engage in electioneering when a voter is casting a ballot.
Diverting Ballots. Homeowners campaigning for or against special assessments, election of directors, removal of directors, or the like cannot induce owners to divert ballots away from the Inspectors of Election. The Election Code and the Davis-Stirling Act require voters to mail or deliver their ballots to election officials. (Elections Code § 3017, Civ. Code § 5115)
Canvassing, Petitioning, and Meetings
Canvassing. Associations cannot prohibit members or residents from canvassing or petitioning (1) members, (2) the association’s board, and (3) residents to participate in permitted activities (assembling, meeting, speaking with public figures, etc.). (Civ. Code § 4515(b)(4))
Meeting Space. Associations must ensure access to the common area meeting space, if any exists, during a campaign, at no cost, to all candidates, including those who are not incumbents, and to all members advocating a point of view, including those not endorsed by the board, for purposes reasonably related to the election. (Civ. Code § 5105(a)(2))
Equal Access to Association Media
If any candidate, member, or director advocating a point of view using the association's media (such as newsletters and internet websites) during a campaign for purposes that are reasonably related to the election, the association must provide equal access to all candidates and members advocating a point of view on the issue. (Civ. Code § 5105(a))
Peaceful Assemblies
Effective January 1, 2018, associations cannot prohibit members and residents from peacefully assembling or meeting with other members, residents, or their respective invitees or guests for purposes relating to (i) CID living, (ii) association elections, (iii) legislation, (iv) elections to public office, or (v) the initiative, referendum, or recall processes. (Civ. Code § 4515(b)(1))
Public Officials, Candidates, and HOA Representatives. Associations cannot prohibit members or residents from inviting public officials, candidates for public office, or representatives from homeowner organizations to meet with members, residents, invitees, and guests to speak on any matter of public interest. “Homeowner organizations” would include groups such as Community Associations Institute (CAI), California Association of Community Managers (CACM), and Education Community for Homeowners (ECHO), but could also be broadly interpreted to include any organization related to or involving homeowner associations. (Civ. Code § 4515(b)(2))
Matters of Public Interest. Any “matters of public interest” would include CID living, social, political, educational, and, to the extent it would overlap any of those categories, religious purposes. However, while meeting and speaking about religious issues in the context of politics, society, or education would be permitted, exercising religious rights, such as prayer sessions or religious services, would likely fall outside the scope of this statute. (Civ. Code § 4515(b)(2))
Use of Common Area. Associations cannot prohibit members or residents from using the common areas, such as a lawn, lobby, or clubhouse, for purposes discussed above. Further, members cannot be charged a fee or required to make a deposit, buy insurance, or pay premiums or deductibles on the associations’ insurance policy when the common area is being used such purposes. A private home may also be used for the same purposes and under the same conditions with the owner’s consent. (Civ. Code § 4515(b)(3); (c))
Reasonable Restrictions. While the above matters cannot be prohibited, they can be regulated as provided by statute.
- Peaceful Assembly. Meetings must be peaceful. (§ 4515(b)(1)) Associations can prohibit violence, threats, excessive noise, or other non-peaceful assemblies and meetings.
- Scope of Meetings and Speaking Topics. While the scope allowed for meetings (§ 4515(b)(1)&(2)), canvassing and petitioning (§ 4515(b)(4)) are broad, they are not unlimited. Associations can adopt rules restricting such activities to the purposes expressly allowed by statute. While the same could be done as to distributing and circulating information under § 4515(b)(5), it would be less effective since the authorized subject matter, issues of concern to members and residents, is effectively unlimited.
- Reasonable Manner and Hours. Associations can restrict the assemblies, meetings, canvassing, petitioning, and distributing materials to reasonable manners and times. Although mailing is unrestricted, canvassing private residences can be restricted to reasonable hours. Members can slide flyers under front doors, door mats, or behind screen doors, and hand them out, but should not affix them to common area walls, doors, or windows, or place them on vehicles.
Distributing Flyers
Members cannot be prohibited from distributing or circulating, without permission, information about (1) CID living, (2) association elections, (3) legislation, (4) election to public office, (5) the initiative, referendum, or recall processes, or (6) other issues of concern to members and residents. This is by far the broadest and most overreaching portion of the new law. The scope of information that may be distributed, without permission, is effectively unlimited. It need only be any matter that concerns a member or resident. (Civ. Code § 4515(b)(5))
Penalties for Violations
Members or residents who are prevented from engaging in activities protected by this new law may seek injunctive relief and imposition of a civil penalty of up to $500 in civil or small claims court. (Civ. Code § 4515(d))
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with community association issues, subscribe to the Davis-Stirling Newsletter.