By Karen St. Onge, Chapman & Intrieri, LLP
As of January 1, 2022, all associations, regardless of their size, can now forego sending out ballots in an election for the board of directors if the election is uncontested, i.e., the number of nominees does not exceed the number of open seats on the board. This process is referred to as “election by acclamation.” Assembly Bill 502 amends Civil Code section 5100 and adds Civil Code section 5103 to the Davis-Stirling Act providing a procedure that associations may follow to declare an election by acclamation if an election is uncontested.
Election Rules and other Governing Documents
An association can utilize the election by acclamation procedures set forth in Civil Code section 5103 even if the association’s CC&Rs, Bylaws and Election Rules are in conflict with an election by acclamation or are silent on the issue. Associations are not required to amend their governing documents to use the election by acclamation procedure in Civil Code section 5103, but it is recommended so that the board correctly follows the procedures and members are educated about the new procedure.
Below is a summary of the new procedures associations must follow to conduct a valid election by acclamation when an election is uncontested:
90-day Initial Notice: At least 90 days before the deadline for submitting nominations, members must be provided by Individual Notice (not General Notice) a notice that contains the information set forth in Civil Code section 5103(b)(1) which includes: (1) the number of open board positions to be filled at the election; (2) the deadline for submitting nominations; (3) the procedure for submitting nominations including the manner in which nominations can be submitted; (4) the statement set forth in Civil Code section 5103(b)(1)(D) informing members of the possibility of an election by acclamation. NOTE: Senate Bill 392 amends the way associations deliver documents to members when Individual Notice is required.
Reminder Notice: Between 7 and 30 days before the deadline for submitting nominations, members must be provided by Individual Notice (not General Notice) a notice that contains the information set forth in Civil Code section 5103(b)(2) which includes: (1) the same information in the 90-day Initial Notice; and (2) a list of names of all the qualified candidates to fill the board positions as of the date of the reminder notice. If at the time the reminder notice is sent the number of candidates exceeds the number of open seats, such that the election is contested, there is no need to include the statement in Civil Code section 5103(b)(1)(D) informing members of the possibility of election by acclamation.
Response to Nomination: Within seven business days of receiving a nomination, the Association must acknowledge receipt of the nomination in writing or by email. Also, within seven business days of receiving a nomination, the Association must advise the nominee in writing or email whether the nominee is a qualified candidate. If a nominee is disqualified, the response must state the basis for the disqualification and the Internal Dispute Resolution procedure by which the nominee may appeal the disqualification.
Determination by Inspector of Elections: As of the deadline for submitting nominations, the Association’s Inspector of Elections (“IOE”) must determine that the number of qualified candidates is not more than the number of vacancies on the board. (Civil Code section 5103.) This is yet another task for the IOE to add to the scope of their duties. (See, Civil Code sections 5105(a)(7), 5105(g)(4), 5110, 5120 and 5125 for IOE duties). The statute does not specify what information the IOE must receive in order to make their determination. For example, it is unclear if board minutes reflecting the number of qualified nominees received by the association’s manager or board is sufficient, or if the IOE must be included as an original recipient of the nominations.
Board Meeting to Declare Election by Acclamation: At a duly noticed open board meeting, the board votes to consider the qualified candidates elected by acclamation. This vote must be included as an item on the agenda and must name each qualified candidate that will be seated by acclamation if the item is approved by the board during the meeting.
An election by acclamation is allowed if the association has held a regular election in the previous three years. The three-year time period is calculated from the date ballots were due in the last full election to the start of voting for the proposed election.
Karen St. Onge practices community association law with Chapman & Intrieri, LLP in their Alameda, California office. She joined the firm’s litigation group in 2008, but for the last several years she has focused on representing homeowner associations in general counsel matters.