QUESTION: How much is the board allowed to tell the membership about a special assessment or CC&R amendment before it becomes advocacy?
ANSWER: The answer can be found in a case that is directly on point. In Wittenburg v. Beachwalk, the association held an election to amend its CC&Rs. The board sent information to the membership explaining the purpose of the amendment and the consequences if the amendment failed. The board then urged members to vote for the amendment. Opponents filed suit alleging a violation of the Davis-Stirling Act that prohibits “Expressly advocating the election or defeat of any candidate that is on the association election ballot.” (Civ. Code §5135.) Although the statute references candidates, the more conservative position is to apply the principle to all elections.
Advocacy Defined. The court adopted the following definition for advocacy: "Black's Law Dictionary defines "advocacy" as "[t]he act of pleading for or actively supporting a cause or proposal." (Black's Law Dict. (7th ed. 1999) p. 55, col. 2.) And the verb "advocate" is commonly defined to mean "to plead in favor of." (Merriam-Webster's Collegiate Dict. (10th ed. 2001) p. 18, col. 1.)" It then identified the following as advocacy by the board in the election: “Both the association Web site and newsletter contained the statement, ‘Members are encouraged to vote yes for the 8th Amendment…’ This plainly amounts to advocacy.”
Explanatory Information Allowed. The court did not criticize the information sent to the association. Explaining the purpose of a special assessment or CC&R amendment does not qualify as advocacy. Common sense dictates that boards explain why they are putting something to a vote. The State of California does the same when it presents ballot initiatives to a vote. What boards cannot do is tell members how to vote.
Association Media. If the board advocates a point of view using association media, equal access must be given to any member advocating a point of view reasonably related to the special assessment. The statute defines “association media” as newsletters or internet websites during a campaign. (Civ. Code §5105.) Although association media is narrowly defined by the statute, it should be expanded to include letters and other forms of association media.
Proper Advocacy. Boards are allowed, however, to advocate for or against a matter if they do so at their own expense. Boards as a whole or individual directors can speak to members, write letters, send emails, and distribute flyers advocating their position without fear of violating the statute. They can campaign for or against a special assessment or amendment to the governing documents.
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