I'm curious about what is intended by "signature verification?" For the HOAs I serve, boards interpret the term to mean "verify the envelope was signed" with not much concern for who might have signed it. -Bruce B.
ANSWER: No association that I'm aware of compares signatures on envelopes against a master list of signatures. They simply verify the envelope was signed. Only if there is a challenge does signature verification become an issue, at which point the voter is contacted to verify it's their signature on the envelope. This approach does not violate the Davis-Stirling Act.
Secret Ballots. As everyone knows, secret balloting uses a double envelope system. The inner envelope and ballot are not signed. The outer envelope contains the member's address and is signed. (Civ. Code §5115(c)(1).) The address allows the inspector to check it off against the voter list so only one ballot is cast per property.
Signature Verification. When it comes to signature verification, the Act states the inspector "may" verify the member’s information and signature on the outer envelope prior to the meeting at which ballots are tabulated. (Civ. Code §5120(a).) That is the only statement regarding signature verification. There is no requirement that associations keep members' signatures on file. I suspect most members would strongly object if their association were to demand everyone's signature be kept on file in the management office.
Delegating Inspector Duties: Regarding your July 8, 2020 newsletter on inspectors of election, could you outline which of those responsibilities the inspector can delegate? - Laurie T.
RESPONSE: To help in the expeditious performance of their duties (Civ. Code §5110(d)), inspectors can delegate some tasks to assistants and/or the association's management company. Some tasks can only be delegated to independent third parties. For a list of what can be delegated and to whom, see Inspectors of Election.
Mailing Ballots: In the notice to homeowners, is it okay to have them only mail the ballot to the inspector of elections and exclude delivery to their home because of the coronavirus? -Kay F.
RESPONSE: Yes. Hand-delivering ballots to a physical address is optional, not mandatory. (Civ. Code 5115(b)(1)&(c)(2).)
Candidate Statements: Can an association have a rule that those running for the board submit a candidate statement for voter consideration? Or must this be a request only? -Brenda W.
RESPONSE: It should be a request, not a rule. A candidate statement is not a qualification for serving on the board of directors. Accordingly, associations cannot exclude candidates because they fail/refuse to submit a statement.
Zoom Ballot Counts: When counting ballots during a pandemic, does the remote inspector of elections have to appear on the Zoom meeting with owners? -Sue L.
RESPONSE: Assuming quorum has been met, the meeting can proceed through all the open forum and routine reports. The inspector can join the meeting when it comes time to open ballots and tabulate votes and everyone can watch. However, because that can be a lengthy process, the inspector could prerecord the opening of ballots and tallying of votes, and then join the Zoom meeting and announce the results. The recording of the ballot count can then be posted on the association's website and distributed by email to all members with a link to the video.
Changing the Election Date: The board has changed the election date from March to September! Is this allowed? -Betty Y.
RESPONSE: Within limits, boards can delay annual meetings. Boards are supposed to hold them on the date and time stated in the bylaws. (Corp. Code §7510(b).) However, there may be circumstances which cause a delay. The Corporations Code provides some flexibility by providing a time period before a remedy can be sought. According to section 7510(c) of the Corporations Code, if an association fails to hold a meeting for a period of 60 days after the date designated in the bylaws or, if no date has been designated, for a period of 15 months after its last regular meeting, a court can order a meeting be held.
Gatherings Not Allowed. As everyone is aware, the pandemic has disrupted board and annual meetings in associations around the state. Board meetings have largely adjusted by going to Zoom meetings. Annual meeting have been more difficult because of the need for an inspector of elections who must tabulate votes "in public" so "any candidate or other member of the association may witness the counting and tabulation of the votes." (Civ. Code §5120(a).)
Continued Disruption. Many boards delayed their annual meetings in the hope the pandemic would recede and they could conduct a normal annual meeting where members could gather in one place. That has not happened. With the spike in coronavirus infections and the possibility of a second "stay home" order in some Counties, members cannot gather for a meeting.
Virtual Meetings. Some associations had already improvised by holding virtual annual meetings and virtual ballot counting. The inspector receives all ballots by mail at their office and then video records the opening and counting of ballots, which can be live streamed and/or posted on the association's website for all members to view.
RECOMMENDATION: It seems unlikely things will return to normal any time soon. Boards should plan on holding virtual annual meetings. They should appoint an inspector of elections, call for nominations, set a date, and proceed with holding an election. If they don't, I can see a court ordering a meeting, since it can be held virtually.
Collecting Ballots: Our district delegate election will be virtual this year and the inspector of elections is in a city approximately one hour away from our HOA. Can a delegate candidate collect signed and sealed ballots from homeowners and hand-deliver them to the inspector or must they be mailed individually? -Jim K.
ANSWER: There is nothing in the Davis-Stirling Act prohibiting candidates from collecting ballots and delivering them to the inspector of elections. Check your election rules. If they are silent, check with the inspector. Inspectors of election hear and determine questions (Civ. Code §5110(c)(4) and perform acts as may be proper to conduct the election with fairness to all members (Civ. Code §5110(c)(8)). Because of the fear of ballot tampering, the inspector will likely refuse to accept ballots collected and delivered by a candidate (or anyone else other than the voter).
Candidate Qualifications. We modified our CC&Rs to require a candidate attend at least 3 meetings in 12 months to be eligible to run for the board. However, because of COVID-19, our board has only held two open meetings since November 2019. The board is disallowing my neighbor from running since he moved in 8 months ago and only attended one Zoom meeting. We think that this is unfair and the 3-meeting rule should be waived because of the virus. -Tim C.
RESPONSE: The 3-meeting rule should be dropped altogether since it is no longer allowed under SB 323. There are one mandatory and four permissive qualifications for candidates who want to run for the board. Attending 3 meetings in 12 months is not one of them.
According to a new CAI survey conducted from late June to early July, only 7% of community association pools opened as scheduled.
NorCal Counties. The State has launched “strike teams” to enforce compliance in Counties on the monitoring list.
Dine-in restaurants, wineries and tasting rooms, movie theaters, indoor family entertainment centers, indoor zoos and museums, and cardroom closures now apply statewide. The 30 Counties on the watchlist (Alameda, Colusa, Contra Costa, Fresno, Glenn, Imperial, Kings, Los Angeles, Madera, Marin, Merced, Monterey, Napa, Orange, Placer, Riverside, Sacramento, San Benito, San Bernardino, San Diego, San Francisco, San Joaquin, San Luis Obispo, Santa Barbara, Solano, Sonoma, Stanislaus, Sutter, Tulare, Ventura, Yolo, Yuba) have to close even more: fitness centers, worship services, malls, offices, personal services, hair salons and barber shops, and malls. Imperial County is open to essential workers only (Stage One) and Alameda and Santa Clara do not have attestations and can only open those industries open statewide. **Kern appears to have dropped off. California Closures 7/13/20.
In addition to the other restrictions, those on the monitoring list will not be able to resume in-person school operations until they have been off the List for 14 consecutive days. It appears outdoor pools are still okay to remain open following guidance.
San Francisco has interim guidance for school openings. It announced their reopening is on pause indefinitely. Marin County has recommended the delay of full return to in-classroom learning, recommending distance learning and small in-person groups. Mono County has again emphasized the need to cooperate with Public Health tracing investigations.
Sacramento County has limited indoor operations as required by the State’s July 13 Order. Tehama County has a new masking mandate that is included in the Notes section of the chart.
SoCal Counties. The following Counties issued or amended their Health Orders to limit indoor operations as required by the State’s July 13 Order: Los Angeles, Orange, San Diego, Santa Barbara, Ventura. Also, San Luis Obispo was added to the watchlist and is directed to follow the State’s July 13 Order, as of July 16. The City of Los Angeles also issued an order to align with State’s order.
Los Angeles County has an updated pool protocol that swimmers who are swimming laps should be reminded that they should maintain a six-foot distance from other lap swimmers, which may necessitate limitations on the number of swimmers that use a lane at one time. It updated its residential pool protocol again on 7/18, which provides more screening and mask instruction for employees at the pool and provides for symptom checks for pool users, which can be conducted online, in-person or through signage. Similar updates were made in the fitness center protocols.
Updated Chart. For a list of County restrictions and links to Health Department Orders, see County Chart 7-20-20. The chart is also posted on our website. Thank you to readers for sending us information about their counties. If we missed anything, please contact us.
What happened to your newsletters? I haven't received any recently. - Jan M.
RESPONSE: I took time off to see the nation's monuments before they all disappeared. I'm back now.
Thanks for your newsletters, really appreciate your spreading HOA news! I have to disagree with you about masks outdoors. If someone sneezes, sweat flying from a bicycle rider etc, this does send out particles. - Jacqueline W.
In your July 13 newsletter you state: I hope it’s another hundred years before the next pandemic strikes. I should be retired by then. But, the truth is, old lawyers never retire — they just lose their appeal! Thanks for an informative and amusing newsletter. -Shirley P.
YOU are the greatest — since sliced bread! -Kay F.
Hi Adrian, I have been on my condo board for over 30 years and have been a long time subscriber to your newsletter. Thanks for all that you do to help keep us volunteers out of hot water!! -Phillip K.
RESPONSE: Thirty years! That has to be a record. I wonder if anyone else has been on their board for 30 years or longer.
|DISCLAIMER. Our newsletter provides commentary based on sketchy information we receive from readers. From time to time, we add a little humor. Some find it amusing. Others are appalled. Some readers are excited when they score free legal advice. Not so. Our newsletter provides commentary only, not legal advice. You need to pay real money for an attorney to review all the facts and give you a legal opinion. We do that too, but you have to actually hire us. It's okay, we're friendly. You can call us. Keep in mind we are corporate counsel to associations only.|| |