This is my second post related to board members. I write this because I’ve been paid thousands of dollars to help Board members run elections. I hope this helps and I have a feeling a future post will be more about board member duties. As always, please feel free to contact me to discuss in more detail – this is general information only.
Last Thursday night I attended an annual meeting and 2 board seats were open. Three people ran; one clearly got the most votes and the other two perfectly tied. After another balloting effort for just these two candidates; it was another perfect tie. We balloted again a third time – a tie. Clearly no one was going to change their minds. Using some tricks up our sleeves, another attorney and I, upon community approval, concluded the election with the flip of a coin. What a mess and feelings were hurt….
I’ll simply try to create a checklist of the thing you “gotta know” for elections (my comments are not in any specific order – but you’ll get the gist):
When your meeting includes an agenda item to elect new board members be sure that:
(1) the notice that went out was in compliance with your bylaws (remember you might be able to do a lot more electronically that you thought you could do but you have to be careful);
(2) you understand the difference between proxies and mail in ballots – and whether you are entitled to use either. There technically is no such thing as a “proxy ballot.” What do you do if someone brings a signed “power of attorney?” Is that a proxy? Most likely so, but call me prior to your meeting if needed;
(3) make sure the notice (sent out within the timeline provided in your bylaws) includes an agenda item clearly indicating that, as part of the agenda, an ELECTION will occur;
(4) with the use of a nominating committee (you should have one even if your bylaws are silent) list your candidates in the notice that is mailed out;
(5) similar to #4 above make sure you have some candidates (and their bios) included in the ‘notice’ of meeting that was sent out;
(6) properly reserve a location for the meeting to occur if not done at your clubhouse and make sure the notice clearly states the time and place;
(7) properly call the meeting to order;
(8) at the appropriate time in the agenda, make a motion to move into the voting portion of your meeting;
(9) once seconded, open nominations from the floor;
(10) if there are nominees from the floor, make sure they accept the nomination and also make sure the ballot you sent out has blank line for write in candidates – just in case;
(11) if you like (and I advise it) give all candidates 90 seconds or so to explain why they want to run for the board;
(12) obtain a motion and second to close nominations;
(13) understand that if your governing documents DO NOT prevent someone from voting if they are delinquent with assessments, the still may be able to vote. DO NOT PRESUME THEY CANNOT VOTE;
14) I should have mentioned this earlier, but you must have a sign in sheet as members enter the meeting room and be sure that you only give 1 ballot per each unit/home entitled to vote (a husband and wife cannot vote twice unless they own two properties). Also, make sure you have a simple system to make sure that ballots are submitted with any applicable proxies attached to them (perhaps a stapler?);
(15) be absolutely certain that you know how to tabulate votes – by that I mean that you make sure you know if each lot/unit gets 1 vote or whether there is weighted voting such as each lot/unit gets assigned weighted voting such as .05323% per unit (yes, this will require some math if you have this voting formula!) This sometimes gets complicated if you have units of different size with differently weighted votes. Some boards use different colored ballots for those lots/units assigned different voting “weight” to make sure that a member with a certain weighted votes gets the right ballot;
(16) make sure you know whether your bylaws require voting to be done by “secret ballot” or note and that you know what this means;
(17) I realize this is out of sequence, but if you are able to use mail in ballots or electronic voting, make sure you’ve followed the statutory requirements as part of your mailed out notice BEFORE you accept such ballots;
(18) make sure you have a proper quorum and know whether or not proxies, under your bylaws, count towards the quorum;
(19) have a ballot counting committee do the counting, not the board and have your manager or attorney supervise the vote;
(20) adopt a ballot retention policy. You want to keep the ballots and proxies for a certain period of time but you do not want to keep them for years. Get rid of them pursuant to a policy.
You would be surprised about how many elections get challenged. The above will help you be above scrutiny but there still will be other factors to be aware of – but this will get you started. No more fear in conducting elections!!!!
(21) OH YES, ONE LAST CRITICAL THING – make sure you know how many votes it takes to elect someone. For example, is it a majority of those in attendance? Is it a majority of a quorum? Is it simply whoever gets the most votes once a quorum is established (a plurality)? (note – this is a really critical question when it comes to the number of approvals necessary to amend your documents or levy certain of special assessments and we will talk about that later). What do you do if you have a tie?