Out-of-State Inspectors of Election
Adams Stirling PLC
  California's Leader in Community Association LawJuly 13, 2020

QUESTION: Is it permissible to use an out-of-state election inspector and require owners to mail ballots to an out-of-state address? Or must the inspector be located/registered in California? -Jon W.

RESPONSE: Inspectors of election can be anyone — an owner, renter, CPA, manager, notary public, attorney, etc. The only requirement is that they be an independent third party. That means the person cannot be a director or candidate or related to a director or candidate, or someone who is currently employed or under contract to the association. (Civ. Code §5110(b).)

Out of State. There is no requirement that inspectors be registered or that they reside in the state. Normally, inspectors attend annual meetings where they open ballots and tabulate votes under the watchful eyes of interested members. Under current pandemic conditions, ballots are opened remotely and live-streamed so members can observe the counting. I suspect the use of out-of-state inspectors is rare but could be important to associations located near California's border with neighboring states. For example, an association in Floriston, California may find it more convenient to use an inspector across the border in Reno, Nevada.

Once the pandemic is over, annual meetings can return to normal where members don't show but the election inspector does.

QUESTION: Is there any way around this requirement to hire an independent inspector of election? I have a 3-member condo association and this seems overly burdensome. If the documents allow for elections by acclamation and the election is uncontested annually, does one need an inspector of election? -Amy B.

RESPONSE: The Davis-Stirling Act requires the appointment of either one or three inspectors of election. (Civ. Code §5110(b).) If you can find a volunteer, you don't need to pay for an inspector. Even if your documents provide for seating directors in an uncontested election, boards should still appoint an independent inspector to close nominations, determine that the number of candidates is less than or equal to the number of open seats, and announce the outcome.

QUESTION: How is an uncontested election different from election by acclamation? In the four decades of of our 20-unit association, we've never had a contested election. We often have to 'romance' people into serving. But we've been advised by more than one source that the new law forbids election by acclamation. -Mark T.

There is disagreement in the legal community regarding uncontested elections.  I believe they are allowed if provided for in an association's governing documents. Because there is disagreement, boards should follow their association's legal counsel. The difference between an uncontested election and election by acclamation is in how the election is handled.

Uncontested Elections. If the number of candidates is less than equal to the number of open seats and if an association's governing documents do not allow for write-in candidates or nominations from the floor, candidates can be seated as soon as nominations are closed. There is no need to send out ballots, since the outcome is already known.

Write-Ins. If an association's governing documents provide for write-in candidates, the number of candidates could exceed the number of open seats. That means ballots must be distributed to the membership and then opened at the annual meeting to find out if there were any write-in votes.

Floor Nominations. If the governing documents do not allow write-ins but do allow nominations from the floor, ballots must be distributed and a meeting held, since there might be floor nominations. If at the meeting there are no additional nominations, ballots do not need to be opened and candidates can be elected by acclamation.

RECOMMENDATION: All associations should amend their governing documents to allow for uncontested elections and eliminate
cumulative voting, write-in votes, nominations from the floor, proxies, and quorum requirements for the election of directors. We do this for our clients and it greatly simplifies their elections and reduces costs.

QUESTION: We have already concluded our elections for 2020. I would like to start preparing for February 2021. Where I can find a Readers Digest version of all the new timeline changes and guidelines? -Jim M.

RESPONSE: Our website's Election Menu has everything you need. It's the most comprehensive resource for HOA elections in California.

QUESTION: I work with a board who wants to implement immediate consequences to members who break the emergency rules set in place for reopening. They want to remove member privileges first and have a hearing afterwards. Because of the health and safety nature of the rules, is this acceptable? -John S.

The pandemic has upended almost everything. It's possible a judge might agree with the board's suspension of statutory due process requirements for health and safety reasons, but I suspect not. If the suspension is challenged in court, the association would likely lose. I hope it’s another hundred years before the next pandemic strikes. I should be retired by then.

NorCal Counties. As of July 11, the following Counties are on the Monitoring List, requiring the shutdown of bars and indoor dining: Colusa, Contra Costa, Fresno, Glenn, Imperial, Kern, Kings, Los Angeles, Madera, Marin, Merced, Monterey, Napa, Orange, Placer, Riverside, Sacramento, San Benito, San Bernardino, San Diego, San Joaquin, Santa Barbara, Santa Clara, Solano, Sonoma, Stanislaus, Sutter, Tulare, Ventura, Yolo, Yuba.

Monterey County, Napa County, Madera County, Sutter and Yuba, have new orders that close indoor and outdoor bars, pubs, brewpubs, and breweries and indoor dining, wineries and tasting rooms, family entertainment centers, zoos and museums, and cardrooms.

Alameda County closed outdoor dining. This means that restaurants, wineries and bars are only open for drive-through or pick-up. Alameda County Press Release.

Contra Costa County has a new social distancing order and specific face covering requirements. Indoor dining is still prohibited, indoor religious services and cultural ceremonies are prohibited and outdoor ceremonies must be conducted following State guidance, indoor protests are prohibited and outdoor protests must follow State guidance. For social gatherings, those over 12 must wear face coverings and all gatherings must take place outdoors.

Mono County is encouraging residents to cooperate with contact tracing investigations. Santa Cruz County’s pool guidance includes a sign: Santa Cruz County Pool Sign.

SoCal Counties. Los Angeles County updated pool protocols for indoor facilities, with guidance on air filtration, including increasing outdoor air circulation by opening doors, windows and using fans, installing portable high efficiency air cleaners, and upgrading a building’s air filters to highest efficiency possible. Also, it provides information on coronavirus leave benefits.

Riverside County buildings are to close by 7/13 and conduct business virtually. State day camp guidance cannot be used as a pathway to open youth sports. All conditioning, skill drills and team games for youths are prohibited.

The City of San Diego is easing its parking restrictions to allow for outdoor dining.

Updated Chart. For a list of County restrictions and links to Health Department orders, see County Chart 7-11-20. 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.

Adrian, I saw a pool scheduling issue. What we do is post a clipboard by the pool entrance daily and residents are to bring their own pen and sign up for items like the hot tub (one residence at a time for 30 minutes) or lap swimming in the pool (one swimmer at a time for 30 minutes from 9:00 am-1:00 pm); after that the pool deck and pool is open with a max of three residences at a time as long as social distancing is maintained. No pool HOA furniture can be used (we have it stacked and roped off). We have two clipboard sign-up lists and people are to bring their own pen to sign up. This has actually worked real well and we have 261 units. Hopefully this can give HOAs an idea on what has worked for us in Santa Barbara county. -Ray O.

I am on the board for a 530-unit complex. We opened our three pools and our program is a success. Here is what we are doing: (1) One family/unit per pool at a time, with 45-minute time slots beginning at the top of the hour; 15 minutes to exchange keys with guards; (2) All users sign a hold-harmless agreement (1 page) each time they use the pool (otherwise too hard to track); (3) All users can only take one time slot at a time. Once they use their time, then they can then sign up for another time slot. (4) We have wipes and sanitizer at each pool. (5) This has been so successful that some residents, including myself, think we should have a reservation system year-round! -Steve J.

Boards can contact us for friendly,
professional advice.

Adrian J. Adams, Esq.
Founder & Managing Partner

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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