HOA INSPECTORS OF ELECTION

Independent Third Party Inspectors

As provided for in Civil Code § 5110(b), inspectors of election must be independent third parties. This includes, but is not limited to, the following:

• a volunteer poll worker with the county registrar of voters,
• a licensee of the California Board of Accountancy (a CPA),
• a notary public, and
• a member of the association (who is not a member of the board of directors or a candidate for the board of directors or related to a member of the board of directors or a candidate for the board of director).

Professional Inspectors of Election. There are companies that provide professional inspector services to associations. They can be hired to prepare ballots, mail and collect ballots, and count votes. Putting an Inspector under contract does not violate the independent status of the Inspector. Civil Code § 5110 provides that "An independent third party may not be a person . . . who is currently employed or under contract to the association." As long as the Inspector is not currently employed by the association for other services, the board can hire the person to oversee the election.

Prohibited Inspectors. Associations may not appoint or use inspectors who are:

• members of the board of directors,
• a candidate for the board of directors,
• related to a member of the board of directors, or
• anyone under contract with the association.

Appointing Inspectors of Election

Inspectors should be selected early in the election process. As provided for in Civil Code § 5105(a)(5), associations may use one of the following methods for selecting Inspectors:

1. Appointment by the board;
2. Election by the membership. This may be a more democratic approach but it is unwieldy and costly because it requires (a) the administrative task of recruiting multiple persons or companies willing to compete for the privilege of overseeing the association's election, and (b) the cost of holding an extra election, i.e., the election of Inspectors prior to the election of directors. This creates the conundrum that electing Inspectors requires secret balloting, which requires the selection of additional inspectors to count the ballots for the election of the Inspectors.
3. Any other method for selecting the inspector or inspectors.

Because the statute mandates that inspectors of election receive and count ballots, either 1 or 3 inspectors (Civ. Code § 5105(a)(5)) must be appointed early enough in the election process so that ballots can be mailed to the inspectors or to a location designated by the inspectors. (Civ. Code § 5115(b)(2).) See "Election Timeline."

Assistant Inspectors. The larger the association, the more time-consuming the ballot-counting process becomes. To speed the process, inspectors of election are allowed to appoint and oversee additional persons (as noted above) to verify signatures and to count and tabulate votes as the inspector deems appropriate, provided the persons are independent third parties. (Civ. Code § 5105(a)(6).)

Duties of Inspectors of Election

Inspectors of election must perform their duties impartially, in good faith, to the best of their abilities, and as expeditiously as practical. (Civ. Code § 5110(d).) Inspectors must perform the duties listed below. To help in the expeditious performance of their duties, inspectors can delegate some tasks to a person or persons, who are not inspectors of election. Those duties marked with a double asterisk (**) may be delegated to a third party to assist the inspector, such as the association's management company.

• **Determine the number of memberships entitled to vote and the voting power of each. (Civ. Code § 5110(c)) [This is normally supplied by management to the Inspector for approval.]
• **Prepare a voter list and correct any information within two business days of receiving notice of errors. (Civ. Code § 5105(a)(7)) 
• **Prepare a list of candidates and correct any information within two business days of receiving notice of errors. (Civ. Code § 5105(a)(7)) 
• Designate a location for mailing ballots or delivery by hand (and provide a receipt if requested). (Civ. Code § 5115(c)(2))
• **Deliver or cause to be delivered ballots with instructions to each member of the association. (Civ. Code § 5105(g)(4))
• **Deliver election rules to each member of the association. (Civ. Code § 5105(g)(4))
• Receive ballots from members. (Civ. Code § 5115(b)(1))
• Verify member information and signatures on outer envelopes. (Civ. Code § 5120)
• Determine authenticity, validity, and effect of proxies. (Civ. Code § 5110(c))
• Hear and determine challenges and questions. (Civ. Code § 5110(c)(4))
• Determine when the polls close. (Civ. Code § 5110(c))
• Open ballots and tabulate votes. (Civ. Code § 5110(c); § 5120(a).)
• Determine the results of the election. (Civ. Code § 5120(a))
• Report the results to the board. (Civ. Code § 5120(b)) 
• Perform acts as may be proper to conduct the election with fairness to all members. (Civ. Code § 5110(c)(8))
• Keep custody of election materials. (Civ. Code § 5125)
• Oversee recounts. (Civ. Code § 5125)
• Make records available for legal challenges. (Civ. Code § 5125)
• Make records available for and oversee inspection during the time records are in the inspector's custody. (Civ. Code § 5205(a))

Prior to the Meeting. Inspectors of election or their designees may verify member information and signatures on the outer envelope prior to the meeting at which ballots are tabulated. (Civ. Code § 5120.)

Early Ballot Count. Providing members with an early ballot count is not one of the inspector's duties.

Election Menu

For more information, see "Election Menu."

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.