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  California's Leader in Community Association LawMay 15, 2020
INSPECTORS
OF ELECTION CHANGED

QUESTION. I had a recent back and forth with Marjorie Murray. She is stating that the law regarding independent third party inspectors of election has not changed. This is getting confusing. -Robert

RESPONSE: I hope that's not what Marjorie said, because it's not true. Her organization's SB 323 amended Civil Code 5110(b) to remove language that previously allowed associations to use anyone under contract with the association to serve as inspectors of election. Many associations used their management companies for that purpose because it was cheaper and, in some cases, built into the management agreement.

Not only that, SB 323 made the election process so long and complicated that it is difficult for associations to find volunteers willing to serve as inspectors. As a result, associations are forced to hire professional inspectors of election, which drives up election costs.

VOTER LIST. What is the voter list and what information is included in the list? Is the association required to provide it to the membership for review and comment? We have almost 500 units. Does everyone get to see everyone else’s information? -Wienke T.

RESPONSE: As required by SB 323, associations are now required to create a voter list with every member's name, voting power and the physical address of the person's separate interest or the parcel number or both. The voter list must also contain the mailing address for the ballot if it differs from the physical address of the voter’s separate interest or if only the parcel number is used. (Civ. Code §5105(a)(7).)

Verification of Information. The statute does not require publishing the voter list, only that members have an opportunity to verify the accuracy of their individual information. That means associations can include a statement in their pre-ballot election notice that it prepared a voter list that contains each member’s name, voting power, address, etc. The statement should tell members how to verify the information and a specified time frame for doing so.

Inspector of Elections. The statute does not require the inspector to prepare the voter list, only that he/she retain it and correct any information within two (2) business days of receiving notice of errors. Management can prepare the voter list and provide it to the inspector, along with any corrections.

Floor Nominations. Our bylaws state that nominations may be made from the floor at the annual meeting. If that is the case, is that when we start the voting process? Meaning, do we start our 105-day process at that time? Or, do we eliminate nominations from the floor in our new election procedures? -Myrna W.

RESPONSE: I understand the confusion. The poorly-drafted SB 323 requires a string of requirements related to nominees. Unfortunately, the bill's drafter forgot to waive them for write-ins and floor nominees. If you strictly followed the language of SB 323, you would be in an election cycle for six (6) months or longer.

The voting process starts when ballots hit the mail. If balloting is still open on the day of the annual meeting, nominations can be made from the floor (if your documents provide for them) and anyone who has not yet cast a ballot can vote for the new nominees if they so choose.

Recommendation. I recommend getting rid of floor nominations and write-in candidates. Doing so eliminates some of the problems created by internal inconsistencies in SB 323. It also allows you to avoid problems if your association adopts language for uncontested elections.

Cumulative Voting
. In a prior newsletter you recommended that HOAs do away with cumulative voting and I heartily agree. Our builder finished construction and is no longer in the picture so at this time we only want to remove the cumulative voting requirement and nothing else even though there are other things that need to be revised. Is it possible to remove only the cumulative voting from our governing documents and not revise anything else? -George

RESPONSE: Yes, you can eliminate cumulative voting and leave everything else unchanged with a simple amendment. We prepare them on a regular basis for the associations we represent.

OPENING
RECREATIONAL AMENITIES

Hold Harmless. For those who are opening facilities using county guidelines but are still concerned about potential liability, we have been drafting hold-harmless agreements for residents to sign before using the pool, gym, etc. Boards should talk to their legal counsel about this extra layer of protection. -Adrian

Face Coverings. We are a senior community and have members who are short of breath (chronic non-infectious heart or lung problems) and cannot tolerate a mask. San Diego County does not require these people to wear a mask — they might faint from lack of oxygen. -Elaine J.

Taking Temperatures. Thank you for the Fantastic information you continue to deliver. How is it that taking people's temperature before they can access a facility of any type is not a violation of HIPAA? On what legal basis are they doing this? -Elise

RESPONSE: It's one of the many rights we lost during the pandemic. Fortunately, it is temporary. At some point freedoms will be reinstated, most jobs will be restored, and the wearing of masks, social distancing, and taking of temperatures will stop. Hopefully, sooner rather than later.


COUNTY ORDERS. Some health department orders contain detailed requirements while others are vague and poorly written. Boards should carefully review applicable health department orders and consult with legal counsel on when and how best to open their facilities.

NorCal Counties. California's Resilience Roadmap clarifies that public pools and community centers are not permitted to open at this time. We revised the pool section of all Northern California counties indicating that public pools are closed.

We added Calaveras County’s most recent press release, as it indicates the same limitations noted above. We added Sutter and Yuba County Phase 2 Attestation Links. Links for Tehama County were added, which indicate public pools are closed, as are gyms.


SoCal Counties. San Diego County continues to have one of the worst health department orders for ambiguity. Their May 10 order states, "To enhance recreational opportunities in the county, private and public golf courses and, other than public or private outdoor recreational facilities (other than community pools per State order), including recreational equipment (such as bicycle, boat, kayak, equestrian and surfboard) rentals may be open for limited use." What does the double negative mean? Also, homeowner association pools are not open to the public. They are private. Do they qualify as "community pools?" Apparently so. The County has instructed police and sheriffs to enforce pool closures at homeowner associations.

Los Angeles County issued a revised order that
pools, hot tubs, and saunas remain closed, but opened beaches, parks, trails, tennis and pickleball courts, archery and shooting ranges, equestrian centers, model airplane areas, community gardens, and bike parks for recreational activity. All gatherings of non-household members are still prohibited. That means social events in parking lots, barbeques, and other outdoor gatherings of non-household members at the association are still prohibited. However, in-person health and substance abuse therapy support groups such as AA meetings of up to 10 people are allowed, provided social distancing measures are followed.

Orange County has deemed all homeowner association pools to be "public" and has ordered them closed.

Updated ChartFor a list of county restrictions and links to their orders, see County Orders as of 5-15-20. The chart is also posted on our website. Thank you to readers for sending us information about their counties. Please contact us with any updates we missed.



Thanks again for a great newsletter and for pointing out that it is not legal advice. We should all know that. I have never gotten legal advice from an attorney that could crack a joke, you might be the exception. You often reference Civil Code and that makes it easy to do some research that we can bring to legal counsel for evaluation. -Finn M.

I appreciate receiving all your updates, and I and my staff certainly enjoy using your website on a daily basis. Thank you for all you do for the CID world. -Dave B.

Your newsletter has been a valuable source of information during this unique time in our lives and your levity is both appreciated and welcomed. -Michelle B.

Got a kick out of “First Lady,” though I have a number of folks who refer to me as “Madame President,” which I think is pretty funny too. Always read your emails, first thing and they brighten my day! Thanks for all the info. -Donna G.

Thank you for posting the updated guidelines today. I re-posted the link on Nextdoor.com and on Facebook. Free, almost, at last…. Yeh! And not much thanks to the Governor who is medically illiterate. -M.

Great newsletter. Appreciate your work about SB 323. My medium-size association just paid $1,100 for new election rules. With 55,000 associations in California, that means the people need to spend $60 million to comply. -Henry C.

RESPONSE: Your projection is probably high but it's clear that Marjorie Murray's organization has cost community associations millions of dollars complying with the bills sponsored by CCHAL. There are efforts underway to undo some of the damage but it will be next year before any bills can make it through the legislature.

Your communications are always valuable and worthwhile, but this recent one is particularly stunning. -F.G.

I love your newsletter. It's so very helpful. -Charles M.

Hello to your great staff at Adams Stirling, Thanks for your very helpful newsletter. Our board members read it constantly. -JoAnne

Thank you for your newsletter. Regarding the Davis-Stirling Act, any relation? -Stephen J.

RESPONSE: Yes, the Hon. Larry Stirling, author of the Davis-Stirling Act, is the same one in ADAMS | STIRLING. He is accomplished, incredibly knowledgeable, and a wonderful partner.


Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC

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.

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