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.)
Candidate's 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 position on issues facing the community.
Forum Optional. The law does not require a "Meet the Candidates" forum, 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, there is nothing preventing the candidates from organizing one and reserving a common area meeting place at no cost to the candidates.
Format of the Forum. In the event a forum is held, the format is entirely up to the hosting party. The following formats seem to be most common:
- Statements Only. In this format, the association serves finger foods or wine and cheese, and each candidate makes a statement (or short speech) as to why members should vote for them. Once finished, the candidates then mingle with members and answer questions. This keeps everything casual and friendly.
- Questions and Answers. This format allows each candidate to make a statement as to 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, they will be voided by the Inspectors of Election.
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 that voters mail or deliver their ballots in person to election officials. (Elections Code § 3017, Civ. Code § 5115.)
Canvassing, Petitioning, and Meetings
Canvasing. 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).)
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 which may be distributed, without permission, is effectively unlimited. It need only be any matter which concerns a member or resident. (Civ. Code § 4515(b)(5).)
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).)
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).)
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).)
For more information, see "Election Menu."
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with community association issues, subscribe to the Davis-Stirling Newsletter.