Our annual election ballots were sent out this year with, for the first time ever, no space for a Proxy. I looked this up on Davis-Stirling and thought that in order to eliminate proxies from the ballots, an association has to amend the CC&Rs? Is this correct?
According to Dawn Braddy, CCAM, CMCA, Senior Community Manager / Education Director with N. N. Jaeschke, Inc., an Associa company based in San Diego (www.nnj.com), “No. CA Civil Code 1363(d)(2) provides that proxies shall not be used in place of a ballot. A proxy (if allowed by the Bylaws and lawfully stated) may be submitted in exchange for a ballot. However, Associations are not required to prepare or distribute proxies.”
For the past two years, our board of directors has sent out annual ballots stating that only owners can run for the board. This is not true, as our CC&Rs and Bylaws clearly state that ANYONE can run for the board — they do not even have to be a member! This has been brought to the attention of the board and management company multiple times and they refuse to fix it or change the ballots so that they are correct. What are our options besides costly litigation?
According to Dawn Braddy, CCAM, CMCA, Senior Community Manager / Education Director with N. N. Jaeschke, Inc., an Associa company based in San Diego (www.nnj.com):
Bylaws determine governance issues. If the Bylaws allow non-owners to serve on the Board of Directors, then the only way to change this provision is to amend the Bylaws. A bylaw amendment requires a vote of approval, by secret ballot, of the membership.
When you do this, you can add other items such as:
The Board, by majority vote of the directors who meet all of the required qualifications to be a director, may declare vacant the office of any director who fits into any of the following categories:
A Director does any of the following:
a. Fails to attend more than three (3) consecutive regularly scheduled board meetings or fails to attend more than six (6) meetings of the Board, regular or special, within any twelve (12) month period
b. Fails to comply with a duly approved action of the Board;
c. Fails to comply with the Association’s Governing Documents, having been provided proper notice and received a due process hearing at which the Board determines that a violation exists; or
d. Falls more than three (3) months in arrears in the payment of monthly assessments.
A Director engages in any of the following types of behavior:
a. Receives any type of monetary gain such as services, products, gifts or gratuities of a significant value, which have been provided in relation to a director’s service on the Board and which is not disclosed. Disclosure must take place at an open meeting of the Board and be recorded in the minutes. Compensation for services duly approved by the Board and unrelated to duties as a director or officer of the Association, or reimbursement of expenses associated with service to the community do not constitute unethical or detrimental behavior and are permissible;
b. Takes any action considered to be grossly detrimental to the general safety, health and/or welfare of the community and/or its Members; or
c. Addresses fellow directors, members, managing agent or any Association vendors with abusive language in such a manner that causes distress, emotional harm or interferes with contractual duties. Abusive language is any language which causes humiliation or intimidation or inflicts ridicule, coercion, threats, or mental abuse, or other language of a punitive nature or language which is prejudicial or grossly profane.
The Board may also consider amending the Bylaws to require all members be in good standing which means not be subject to any pending disciplinary action and not be delinquent in payment of more than three (3) months assessments, or their voting rights and use of association amenities may be suspended without hearing until the member is restored to good standing.