© 2024. Rome & Associates
INTRODUCTION
When community associations prepare for electing board members, I often get questions like: Are spouses allowed on the board together? Do ballots have to be signed? Can delinquent homeowners be board members? How long after an election does the association have to keep the ballots? Do candidates choose whether they are running for President, Treasurer, or Secretary?
The procedure for electing a board is usually contained within the bylaws, but the specific procedures can differ from community to community. For this reason, it’s important to read over the bylaws to ensure the election is considered valid. In addition to the bylaws, Robert’s Rules of Order and the Georgia Nonprofit Corporation Act (“Act”), may also offer some guidance about election protocol. The following are some common requirements regarding the election process.
Candidates.
Candidates are usually self-nominated or selected by a nominating committee. In addition, nominations are often allowed from the floor at the meeting. This is why proxy ballots for those who cannot attend the meeting typically contain a line for write-in candidates.
The required qualifications for candidates can vary more than you might think. Some bylaws only allow owners or their spouses who reside on property to run for the board. Others might prohibit joint owners or spouses from serving on the board at the same time or may limit nominees to those who are ‘members in good standing’ (current in payment of all association assessments). The member in good standing rule may also apply to an owner’s eligibility to vote in the election.
Notice & Meeting.
Elections are customarily held at the annual owner meeting. Proper notice of the meeting must be sent within a minimum number of days prior to the meetings, as required in the Bylaws. The full agenda for the meeting and the proposed annual budget are often sent along with the election notice and proxy ballot.
Quorum & Term Lengths.
To hold an official election, it is necessary to first obtain a quorum of homeowners in person or by proxy. Quorum requirements vary between 10% and 50% of the eligible voting owners. It is not unusual to suspend the meeting for an hour or so while proxy ballots are collected from homeowners door-to-door. If a quorum cannot be reached, then the same Board members will continue to serve until such time as their successor has been elected. In the event there is an empty board seat (or a director resigns) the remaining board member may appoint someone to serve out the remaining term.
The lengths of the directors’ terms are also found within the bylaws. Terms vary between one and three years. If the terms are “staggered” not all the board seats will come up for election within the same year. This ensures that someone with prior experience will still be serving on the board.
Board of Directors vs Officer Designations.
Owners are sometimes surprised to find they are voting for the board of directors, but not their specific officer designation; president, secretary, treasurer, etc… This is a very widespread approach, and one of its purposes is to make sure there are enough candidates to fill the open board seats. If several seats were open and everyone ran for president, only one candidate would make it to the board.
It is important to remember that the power over running the association is in the hands of the board of directors, and the officer positions simply add some specific duties. When the owners are not voting for the officer positions, the newly elected board members will decide the officer positions.
Secret Voting Vs. Anonymous Voting.
Secrecy or privacy is the main reason for elections by ballot as opposed to voting by voice or by hand. (Robert’s Rules Section 46) If this were not the case, owners might be reluctant to vote their true sentiments in public. Secret voting is occasionally confused with thinking the votes have to be anonymous. In our national elections the ballots themselves are anonymous because each person is approved prior to entering the voting booth. Since associations do not use voting booths or machines, each ballot must contain the signature of the voter; the property address; and the date.
Ballots vs. Proxies.
A ballot is simply a piece of paper used for selecting candidates. Pursuant to the Georgia Nonprofit Corporation Act, a ballot must give the voter a choice of voting for, or withholding a vote, for each candidate. This means a candidate’s name cannot be left off the ballot. Since simply mailing out absentee ballots would not help in establishing a quorum for the election, associations send the owners proxies. There are two types of proxies; general and directive.
- (i) General Proxy. A general proxy simply states that the proxy holder can vote in place of the member on any matter at the meeting, including filling out a ballot for the election. Associations are getting away from using general proxy because a candidate of their agent can solicit signed proxies, and in effect, vote however the proxy holder wishes to vote, rather than how the owner themselves may have voted.
- (ii) Directed Proxy. A directed proxy allows the owner giving the proxy to vote for specific candidates in the election. This results in the ballot being part of the proxy and means the proxy holder is simply delivering the owner’s vote for the election. A directed proxy also states it can be used for purposes of establishing quorum at the meeting.
A directed proxy does not violate the principle of a secret ballot because the member is voluntarily allowing the proxy holder to know who they are voting for in the election. There have been occasions when someone in an HOA is upset about a candidate going door-to-door to solicit votes and collecting proxies. While this may not be something that is considered ‘normal’ for a government election it is typical in the corporate world; and most associations are nonprofit corporations.
Under the Act and most association bylaws, a proxy is simply required to be signed and dated by the owner; and can be given to any person they appoint as their proxy holder. In fact, a member does not even have to use the proxy form distributed by the association if it otherwise complies with the bylaws. Therefore, the proxy forms sent out by the Association should state that the owner appoints a person who is named on a blank line, or that they otherwise appoint the Secretary.
Counting Votes & Tellers.
The votes are typically counted by the Secretary and at least one other witness, sometimes the property manager. Some larger associations employ a CPA for this purpose. In Robert’s Rules the person counting the votes are called the Tellers.
Whoever is counting the votes decides on whether each ballot is valid. Ballots can be considered invalid due to such causes as: insufficient information; illegible writing; voting twice; and voter ineligibility. The defective ballots are set aside and not counted as votes. The remaining ballots should be tallied at least twice by each person counting the votes.
The election results are then verified in writing by those who counted the ballots. The original is entered into the minutes and will remain in the association’s records. Sometimes an additional certification of election is entered into the minutes by the Board. It affirms that the required procedures were followed for the election, such as proper notice, sufficient quorum, etc…
Announcement of Results & Challenges.
The winning candidates are then officially announced at the meeting. Any motion for a recount must be made before the meeting is officially adjourned. This is done to balance the desire for fairness with the need for finality. If a challenge beyond a simple recount is made prior to the close of the meeting, under Robert’s Rules the issue would be resolved by a vote of the members present. (Robert’s Rules Section 45)
Once the meeting is closed any challenge to the election would have to be made through the court system. A board of directors does not have any authority under Robert’s Rules to decide on a challenge to the election at the meeting or between meetings. This is because it would place too much power to control elections in the hands of the board, who themselves may be up for election.
After the meeting is concluded the ballots should be temporarily stored in a way that maintains the privacy of the voters. The ballots are not immediately destroyed because it allows for the possibility of a legal challenge. So after set time, such as 30 to 90 days, the ballots may then be disposed of or otherwise destroyed through a method such as shredding.
