INDEPENDENT
INSPECTOR OF ELECTIONS
QUESTION:
We hired a professional Inspector of Elections to run our recent election. One
of our owners was adamant that since the Inspector was
"under contract" to the association she was no longer independent and this
violated the Davis-Stirling Act. Is that true?
ANSWER: Your owner
should switch to decaf--he's way too hyper. He misread Civil
Code 1363.03(c)(2), which provides that "An independent third party may not
be a person, business entity, or subdivision of a business entity who is
currently employed or under contract to the association for any compensable
services unless expressly authorized by rules of the association . . ."
Missed Words. Your caffeinated critic
missed the words "currently employed." The board cannot hire someone
who is currently employed by the association. Since the Inspector you hired was not currently
employed by the association, the board can legally hire her to run the
election.
Exception to Prohibition. It should be
noted that the prohibition against hiring someone "currently employed" by the
association has an exception. The statute expressly waives the restriction if
the hiring is "expressly authorized by rules
of the association." In other words, if your Election Rules authorize the hiring of the association's management company or CPA
to serve as an Inspector of Elections, then doing so does not violate the
statute.
ILLEGIBLE
BALLOT ENVELOPE
QUESTION: Does an HOA or management company have the right to discard and
not count ballots if the return signature and address on the return envelope
is illegible?
ANSWER:
Yes, Inspectors of Election can (and should) set aside and not count envelopes where they cannot
identify the voter. To prevent voter fraud, the
Davis-Stirling Act requires that owners identify themselves by name, address and
signature.
In the upper left hand corner of the second
envelope, the voter shall sign his or her name, indicate his or her
name, and indicate the address or separate interest identifier that entitles
him or her to vote.
Civil Code 1363.03(e)(1).
No Discards. Inspectors should not discard any ballots or
outer envelopes. All voided materials should be marked "Void" and kept for at least one year with the rest of the election materials.
GARY
KESSLER APPOINTED
TO AMICUS COMMITTEE
I am pleased to announce that Gary Kessler has
been appointed to serve a two-year term as a member of the Community
Associations Institute’s National Amicus Curiae Committee.
Amicus curiae (friend of the court)
briefs allow organizations with an expertise in a certain area of the law to
educate a court about the legal issues in a particular case. CAI's amicus curiae
efforts enable the organization to help shape the outcome of matters of
importance to community association law. As a member of the Committee, Gary will
be reviewing applications for amicus curiae appellate briefs made to CAI.
FEEDBACK ON
BALCONY
SMOKERS
Quaint.
Do people still smoke? How quaint. -C.S.
Libertarian Approach. You may want to
look at our libertarian approach to the smoking issue, as well as other personal
nuisance issues: residents can do whatever they want, so long as no one else
smells/hears/whatever it. -Stu S.
Fight to the End. I would fight to the
end against a ban on smoking outside!!! -Steve N.
Persecuted Underclass. I am a non-smoker
and I really do not particularly like being around cigarette smoke BUT I am
beginning to see smokers as a persecuted underclass. Perhaps it is not a
violation of an individual's civil rights to ban it but what happened to
tolerance and learning to get along with your neighbor? Perhaps we need to go
back to understanding that if you choose to live in a communal living situation
you are going to be confronted with a variety of different choices people make
on how they want to live. If you cannot tolerate the great variety of life and
its risks, why in god's name are you living in a condo? -Jeffrey S.
Smoker Rights. I completely disagree
with your smoking advice. While I am not a smoker or a lawyer, I find it very
hard to believe that a legal challenge will lose, and I’m not sure I would want
to spend HOA funds defending against such a suit. A smoker has as much right as
a non-smoker. To deny them the right in their own home is ludicrous. -Mark M.
RESPONSE:If smoking were harmless and unobtrusive, your
arguments might have merit. A court in Colorado has already upheld a complete
ban on smoking, including inside units. The
judge noted that second-hand smoke is a nuisance and upheld the association's
CC&R amendment as proper and reasonable.
Christiansen v. Heritage Hills. In
addition, the California Court of Appeal upheld a cause of action for nuisance
related to second-hand smoke in outdoor common areas.
Birke v. Oakwood. Associations clearly have the authority to
regulate nuisance complaints that occur inside units and on balconies.
"Nuisance" includes both noise and second-hand smoke.
CENSUS FEEDBACK
Enumerators.
The
Census Bureau operates year-round taking many types of surveys. Census takers are
officially employed as "Enumerators." Enumerators are not allowed to
have their I.D. badges photocopied. To verify a person's legitimacy (besides
looking at their badge) people can call the local Census office and speak to a
manager. -Kristine D., Field Operations Supervisor, Census Bureau
Blitzed with Calls. We are getting
blitzed by phone calls from people claiming to be census takers. They ask for
the names of residents and for their contact information. To date, the callers
have not requested physical access to buildings. Because we cannot confirm the
identification of the caller and verify that they are, in fact, a census
employee, we have declined to provide this information. -Marcia N.
RESPONSE:
Anyone can call and claim to be a census taker. For security reasons, I agree
with your approach. you should decline to provide information over the phone. If
they come to your office and provide proper I.D., you should cooperate.
MISC.
FEEDBACK
Lawyer
Ethics. I thought attorneys took an oath to uphold and comply with laws - an
attorney advising something contrary to the Davis-Stirling statutes appears to
me to be advocating non-compliance. Ethical issue? -Board Member, Palm Springs
If It Ain't Broke. If there was ever an example of people ruling themselves effectively, it is
highly visible in the mini-governments of community associations. The elected
leaders are unpaid, and there is the attitude “that if it ain’t broken, don’t
fix it!” City, states and our national government could do well to study this
form and the results. Yes, there is some abuse and we hear about it. Yes,
improvements are needed (reserve management and use is one) but all in all, the
state of community associations is in good shape when you consider the
alternative. -Jim M.
RESPONSE: Self-rule is messy but
infinitely better than state control.
FHA Loans. As a real estate broker, it's
one of my pet peeves that condominium buyers cannot get an FHA loan for
properties in HOA's with less than 60% owner-occupants. Wouldn't it make sense
to sell to first-timers who will become residents, thereby increasing the
owner-occupant ratio? Cash buyers are likely to be investors, increasing the
rental units in the complex. Changing the lender rules would quickly make those
units more marketable. I've brought that issue up to Congressman John Garamendi,
who promised to look into it. -Maxine
RESPONSE: See latest release from HUD regarding association insurance requirements and FHA loans.