HOA Governance: Know Your Place During an Election
Can your condo or HOA board endorse a slate of candidates? Can it discourage owners from voting for other candidates? What about notifying owners of what board members believe are untrue or misleading claims by candidates? Here's a guide to appropriate board behavior during elections.
The Neutral Board
"Whom to elect is really up to the owners," says Robert Galvin, a partner at Davis, Malm & D'Agostine PC in Boston who specializes in representing condos and co-ops. "Boards shouldn't endorse candidates and shouldn't badmouth candidates."
Could you notify members if you believe a candidate is making false claims? "If somebody says something that's factually untrue, you could correct that," says Galvin. "But I wouldn't try to insert myself in the process and say, 'So-and-so is dishonest.' If a candidate says, 'We're spending too much on oil' when the building is heated by gas, you can correct that."
James Donnelly, president and CEO of Castle Group, a property management company in Plantation, Fla., that manages 55,000 association units, agrees. "You have to distinguish between the board and officers," he says. "It's the board's job to hold the annual meeting and election. Often there are directors on the board who are also running. The board should have no political role in the election. The directors are competing and should be able to say whatever they want within the law."
An endorsement seems harmless. Why not do it? "When the board is endorsing a candidate, it could be construed as very unfair," says Galvin. "I also wouldn't encourage candidates to run as a slate. Candidates should be treated as individuals. When boards run as a slate, the election tends to get too politicized and becomes like a red and blue state thing."
Little Chance for Board Input
In some states, such as Florida, state laws governing association elections are so strict that it would be hard for a board to tinker too much in an election. "In Florida, condo elections are pretty clinical, and politicking is kept to a bare minimum," says Bob Tankel, principal at Robert L. Tankel PA in Dunedin, Fla., a law firm that advises associations. "A few years ago, the legislature changed the way they're carried out, and now they're all done by mail and written ballot. So boards can't get involved by saying something like, 'Reelect the team with steam.'"
There are also penalties for boards that go too far. "Boards have to be very careful about toeing the line on the Florida Administrative code and the statute on balloting," says Tankel. "There are civil penalties for interfering in an election. And there can even be sanctions if the board indicates who's a sitting board member. They have to list candidates in alphabetical order."
That doesn't mean there isn't campaigning. "As individuals, nominees can campaign all they want," says Tankel. "Every candidate is entitled to include one 8½ x 11 sheet in the mailing about the election, but it can't be on association stationery, and candidates can't use association funds to cover postage for other campaign mailings. But there's no limit on what a candidate can put on that page included in the election materials, and the board can't alter, censor or interfere with that. If a candidate wanted to have his five-year-old kid draw stick figures to be included in the mailing, the board couldn't stop that."
How the Board Can Promote Transparency
So what should your board do to keep owners from perceiving an election as unfair? "If you start with a board that communicates with the owners and you have a fair process, the problems are minimal," says Galvin.
"I recommend there be a nominating committee made of owners, some of whom are on the board and some who aren't," Galvin adds. "They can circulate a letter, a newsletter, or post on the association's website that anybody who wants to nominate someone for the board, including themselves, has to do so by a certain date, giving a paragraph on the nominee's qualifications and why they want to run. A candidate might say, 'I'm an architect and I think my skills will help the association.' Or 'I want to run because I think fees are going up too much or the landscaping isn't being maintained.' Candidates can certainly say those types of things. All those replies can be circulated to all unit owners."
Galvin then creates a proxy for owners who can't attend and a ballot for those who do attend. "I put on all the people who've been nominated, and I include a space for write-ins," he says. "People perceive this is a fair way to do it, and we don't get many gripes at all."
Donnelly also recommends a candidate forum. "A lot of huge associations never even get a quorum," he says. "But for active communities where there's normally a quorum and an election, we recommend a meet-the-candidates night, day, or meeting where candidates can say their piece. The board can say, 'We've approved a process for our community consistent with our documents. Here's the notice that we're going to have a meet-the-candidates forum on this date, and the election will be on this date.' That makes for transparency."
It's critical to create a clean election process. "Sometimes boards try to hold things too close to the vest and not have a real open election process," says Galvin. "I think that's a mistake. "That's not perceived as fair by unit owners and creates an us-versus-them type of result."
Donnelly seconds the sentiment. "We've found that crazy elections usually make for crazy boards and not healthy management," he says.