Election season typically starts around Labor Day, when we start to be bombarded with reminders to cast our ballots to choose who we want to be in charge of our city, town, state and country. It ends on Election Day in November, when the voting is completed, the tallying is done and a winner is announced. In condominium and homeowners associations, a similar type of annual election process takes place—an election to choose a board of directors that will work with the association’s manager to make sure the community’s finances, physical maintenance and other day-to-day business remain solvent and sound.
When it comes to actually running the elections, however, the biggest concern among those involved is making sure the elections are fair and balanced and nobody has a reason to cry foul. Elections can be heated as it is, so the voting process should run smoothly and without any hiccups.
So is the term ‘fair election’ an oxymoron? Although unfair elections—where there have been broken voting machines or improper ballot counting—make front page news, the truth is that it’s not common for elections to be unfair, at least technically speaking. On the other hand, it’s pretty easy to have a fair election for a condo or homeowners board if these few basic guidelines are followed.
Follow the Bylaws
An association’s governing documents will provide detailed information about the specifics of an election. “The bylaws will say what the term for trustees is,” says Daniel Polvere, senior associate at MPD Law, LLC in Charlestown, Massachusetts. “The two most common variants are annual terms and staggered terms. The staggered terms are most likely three-year terms. So when a condominium is first established, for example, let’s say two people are elected for three-year terms, two people for two-year terms and two people for one-year terms. The replacements will all be elected for three-year terms. The elections are held annually although the terms may run longer.”
Polvere says he prefers staggered terms because they “provide continuity to the board.”Attorney Gary Daddario of Perkins & Anctil in Westford, Massachusetts, agrees that it’s the wiser approach. The documents, says Dadarrio, will also provide the amount of notice that should be given to residents prior to an election. Typically it is one or two weeks. “If there isn’t a requirement for notice of an election, there should be a specification for an annual meeting because that’s when and where an election will happen,” he adds.
Communities may run into a few problems with elections. “The most common reason an election is not held is because a quorum cannot be met,” says Polvere. “When I have an influence on an association, whether drafting or fixing documents, I advise associations to lower their quorum requirements to around 20 percent. That way you can be sure that you will have a valid election and make sure that your documents allow for proxies so people don’t have to be there in person.”
Another issue that associations can run into involves not the candidates but document language. Some documents call for a majority, such as 51 percent, for the quorum as well as a majority for the election winner. This setup can prove to be a dilemma. Polvere suggests editing the documents so that the winner needs to obtain a plurality, “as long as you have the right number of people for the quorum, the person who has the highest number of votes gets elected,” he says.
It’s definitely not a fair election if the people aren’t there to vote, so make sure to spread the word that it’s taking place.
Get Outside Help
If your board doesn’t want to be personally responsible for administering the election, an outside vendor can run the election. The vendor, usually an independent election tabulator, can handle a part of the event, such as tallying up the votes, or they can run the entire election.
Companies like TrueBallot Election Services & Solutions in New Haven, Connecticut., and Survey & Ballot Systems in Eden Prairie, Minnesota, administer elections for public and private organizations, including condominium and homeowner associations. “We do it all different ways: mail ballots, on-site voting, Internet voting, whatever makes sense for the particular election that that organization needs,” says Caleb Kleppner, vice president for TrueBallot’s Northeast region.
Over the past two decades, “we’ve seen a lot of member organizations like condominium associations put an emphasis on running their decision-making and democratic process the right way … Voting is a very powerful thing, and they want to make sure they have the participation and that everything is being run above board,” says Tim Madsen of Survey & Ballot Systems.
Kleppner adds that most condominium and homeowner associations tend to use a mail proxy where they can cast a ballot in person at annual meetings but he has seen certain communities move to Internet voting. If an association has had difficulty organizing or running an election in the past, hiring a vendor can be a big help.
“When an association hires us to run their election, we are involved in producing, distributing, receiving and tallying the ballots and proxies, if they are being used. An association would hire us if the election was too big, too complex or too contentious,” says Kleppner.
Additionally, a qualified vendor adds a level of objectivity to the election because of the added third party who is handling sensitive material and “has no stake in any of the internal politics of the organization,” says Kleppner. His company gets pulled in a lot to associations where trust is an issue. For them, “to have the third party is critical for people to accept the results of the election,” he says.
“There’s been some media coverage when organizations haven’t been doing things the right way, and people take note of that; they want to be sure they’re doing everything they can to make the process is fair and transparent,” Madsen says. The technology involved for online voting —which is becoming increasingly popular—is encrypted in a way that’s similar to online banking, he notes. “So if the members of an association are comfortable with online banking, they should be comfortable with online voting.”
Madsen, however, notes, that bringing in an outside firm with online voting capabilities may not be right for every association.
Prepare the Proxies
Not everyone can make an election but they still want their votes to count and that’s where the proxy comes in. A proxy allows owners to vote even if they are not present at the election. The method in which this is enacted depends, again, on the association.
Kleppner explains that there are two different types of proxies. “One is called a directed proxy where a person has a signed piece of paper. They say ‘I want to cast my votes for the following candidates.’ They direct the other resident or shareholder how to cast their vote in the election. The other type of proxy is a non-directed proxy which means: ‘I give my vote to x person who will cast my vote as they see fit’,” he says.
Recently, proxies are being replaced by a different method to encourage greater participation. Proxies can be beneficial to residents who cannot make the election but Kleppner urges communities to be cautious and organized in distributing them.
“A difficulty with condominium and homeowners associations is if you have an uncontrolled use of proxies and you have different factions distributing proxies and getting people to sign them. Then on the day of the annual meeting people come in with piles of proxies and some of them have been signed apparently by the same person and you have to figure out which one counts if any,” he says.
Daddario explains that a solution to this would be to have some sort of identifying marker such as an original stamp, sticker or color coding. “It is a relatively inexpensive means to make sure that ballots can be identified and not reproduced.”
Certain associations may also allow residents to vote by mail, like a general election’s absentee voting, says Polvere. “It’s my belief that you can have proxy voting if the documents are silent but absentee voting would have to be set out in the documents to do it.”
Count the Votes
With all the ballots and proxies in, it’s time to tally up the votes and see if John Q. Smith won a seat on the board of directors.
Companies like Kleppner’s can do the counting or, says Polvere, association professionals pitch in. “I often advise clients that it is a nice practice to collect the votes and count them right there at the meeting. It lends itself to the notion of transparency and helps people have faith in the system and not have suspicions raised about whether or not they think anything occurred with the counting of the ballots,” Daddario says.
He also suggests that boards and property managers call upon a few resident volunteers to help count or at least observe the counting of the votes. “It just helps in terms of the community at large to accept the results of the election and know that everything was done honestly.”
Demand a Recount!
Well not really. Typically recounts are not demanded or conducted unless a small number of votes determined who was elected or there is some suspicion that the count was not properly conducted.
“It happens quite commonly and often election administering companies such as Kleppner's get involved after someone has contested the election and possibly gone to court about the results.
With vendors, recounting ballots is substantially easier because most have a very precise method of tallying and recording the votes. Kleppner’s company, for instance, burns all the information onto a CD which is then presented to the association. “If someone does challenge the election it is easy for us to verify the results of an election, we match the electronic records to the paper records,” he says.
“As a last resort, some associations and unit owners do battle about elections in the court system. Since the election impacts the community at large, unit owner plaintiffs would need to follow the procedures regarding derivative actions. Further, a plaintiff would bear the burden of demonstrating, in the first instance, that some sort of impropriety had occurred.
“As always, communication is key,” says Daddario. “If unit owners suspect a particular problem, they should inform the association’s property management and board, in as much detail as possible, as soon as possible. If the concern is general in nature, I would advise concerned owners to simply approach their property management and/or board with suggestions regarding desired election procedures. Perhaps such suggestions might be accepted and implemented if the board feels that they are in the community’s best interest,” he says.
Just as in a national or state election, one person’s vote might mean the difference between having a policy enacted or a new board put into place. Cast your votes wisely and be a part of the democratic process in your building community.
Maggie Puniewska is an editorial assistant with New England Condominium and other publications. Associate Editor Pat Gale contributed to this article.