Q: We tried to get a bombastic braggart off the board by a vote. He interrupts and has even stood and approached board members threateningly. He has told homeowners to shut up. We even called the police once to get him to stop his antics. To accomplish removing him, we had a special meeting. We had a quorum, but according to the attorney’s formula, he got to stay. I just can’t believe the recall formula that our attorney had us use is fair. I would appreciate your opinion on the recall formula. — D.S., Orange, CA.
A: I can tell from your narrative that the governing documents provide for cumulative voting, in which a member can stack their votes for candidates instead of casting one vote per candidate. Cumulative voting makes recalling individual directors very difficult because under Corporations Code Section 7222(b)(1) the “no” votes count for more than the “yes” votes. This is yet another reason why most HOAs remove cumulative voting when they update their governing documents. Cumulative voting creates more problems for HOAs than it helps.
Q: Starting in 2022, all HOAs have the option of utilizing the acclamation procedures in Civil Code 5103 when “the number of qualified candidates is not more than the number of vacancies to be elected.” My question: Do CCRs have to be changed before the HOA can implement the acclamation process? — A.Y., Bakersfield
A: No, the CC&Rs do not have to be changed (unless they specifically bar acclamation). The new Civil Code Section 5103 is a boon for most associations, but there are several procedural requirements that must be followed to preserve the option.
For example, the election process must begin 60 days earlier, since the first membership notice regarding acclamation must be 90 days before the deadline for nominations (Civil Code Section 5103(b)(1)). There is a second notice between seven and 30 days before the close of nominations, and a prompt response is required to each nominator and nominee.
Updating HOA election rules and incorporating the process required by Section 5103 is a good idea. That amendment need not pursue the two-step, 28-day notice process required for most rule changes, because rule changes that ”merely repeat the existing law” are exempt from the process pursuant to Civil Code Section 4355(b)(5). So, this amendment could be accomplished in one open board meeting with the normal agenda notification.
Q: I’m wondering if a homeowner can request all members’ contact info from the manager in order to send out a “vote for me” email to everyone? — L.L., Palos Verdes.
A: Under Civil Code Section 5200(a)(9), members can request and receive a copy of the names, addresses, and email addresses of any member who has not opted out of allowing that information to be shared. Civil Code Section 4515 protects the right of members to campaign, and the middle 30-day period provided for by Civil Code Section 5115(b) seems to be intended to allow the nominees to campaign before ballots are sent out. Therefore, yes; any homeowner can do what you describe.
Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober DeNichilo LLP, a law firm known for community association advice. Submit questions to Kelly@rodllp.com.
Source: Orange County Register