This is the time of the year when many community associations hold board member elections. The process is easy, right? The association identifies the number of open positions, solicits nominations, sends out a meeting notice with candidate information and proxies in accordance with the governing documents (usually bylaws), and conducts the meeting following protocols outlined in the governing documents or Robert’s Rules. If applicable, nominations are taken from the floor, and after giving the candidates an opportunity to briefly speak and answer questions, the vote is taken and the candidate or candidates who receive the highest number of votes, win(s). Easy, right? Not necessarily.
As our nation discovered during the 2008 “chad” presidential election, the devil is in the details. And one such “detail” involving community associations can jeopardize the validity of an election.
Many Oregon and Washington condominium and homeowner association declarations and bylaws do not expressly state how to conduct the election itself. Although the documents ordinarily require annual elections, define quorum and describe the meeting notice and content requirements, the provisions often omit precise voting and vote-counting procedures. But many of these same documents include a “catch-all” provision, usually looming in a section of the bylaws unrelated to meetings or board elections, as follows:
Majority Vote. Except as otherwise provided by the Condominium Act , the Declaration or these Bylaws, passage of any matter submitted to vote at a meeting where a quorum is present shall require the affirmative vote of at least 51% of the votes present.
If your association’s documents contain explicit voting language like the example above, then to properly conduct a board election, each position must be filled by a candidate who received at least 51% of the votes. For example, if there are three positions available with five candidates, and the top three candidates obtain 52, 22 and 18 percent of the votes (with the remaining 8% split among the two other candidates), then only the first candidate is elected for one position. In that situation, the association would have to conduct a second vote for the two remaining positions with the four remaining candidates, and repeat the process, if necessary, until all three positions were filled by candidates who had received at least 51% of the votes.
With quorum, proxy, notice and other hurdles already in place, board elections are sufficiently complex without the need to add hidden pitfalls like the one described above. To avoid these got’chas, or if you have questions relating to any other association governance or legal issue, do not hesitate to contact a member of the Barker Martin team.