A few months ago, the Chairman and Secretary of a Pennsylvania community association were convicted by a jury of election fraud. The directors schemed to fill out ballots to stack the deck in upcoming board elections. An attorney in Las Vegas plead guilty to a similar charges a few years back. He was part of a plan to falsify ballots to elect board members that would direct business to certain vendors.
While reports of rigged HOA elections are relatively rare, it is important to give some thought to transparency and security in community association elections. The first step in any well run election is to follow the rules. Community association governing documents and relevant statutes detail how owner/member votes may be cast, including the use of proxies, absentee ballots, and electronic ballots.
The information can be found in either the declaration or bylaws, but is most often found in the latter. The relevant statutes for Oregon condominiums are Oregon Revised Statutes (“ORS”) 100.425., .427 and .428; for planned communities, the relevant statutes are ORS 94.647, .658, .660 and .661. The relevant statute for Washington condominiums is Revised Code of Washington (“RCW”) 64.34.340. The statutes applicable to Washington homeowners’ associations do not contain a specific rule, though 64.38.040 references the use of proxies in the quorum requirements.
A frequent point of contention is the proxy. Some associations try to mandate a particular form and prohibit all others. In Oregon and Washington that is not permissible so long as the proxy is signed and dated and meets other technical, statutory requirements.
It is important as part of the voting process to review proxies to make sure they are in compliance. Voting outcomes can be successfully challenged where non-compliant proxies are used.
Give some thought to how votes are tallied. Some community associations tally the votes in public, provided voters and proxies can be verified in the time given. Others use their manager or other professionals to tally votes after a meeting or as votes come in by mail. Ballots and proxies are frequently kept for any needed verification down the road. Be wary of the appearance of board members tallying votes themselves, particularly on hot button or divisive issues.
As always, if our office can be of assistance with elections or any other community association issues, please contact us.
