The California Civil Code sets out some very specific duties and requirements for the inspector of elections in California community association elections. Effective January 1, 2020, one of the changes imposed by SB 323 is that the inspector of elections cannot be otherwise under contract to the association. This means that management companies, lawyers, CPAs or others who are under contract to perform services, and employees of those firms, cannot act as the inspector of elections. Members who are not a director, or a candidate for director or related to a director or to a candidate for director, can continue to act as inspectors of elections. While members are still legally allowed to act as the inspector of elections, boards should make sure that the member understands the duties of the inspector of elections and is able to fulfill the responsibilities before appointing a member to serve in that role. To assist boards, managers, and members who may be asked to serve as the inspector of elections, this article will address many of the questions as to what the responsibilities of the inspector of elections are, and what role management can still play in assisting the inspector in the association’s elections.
WHAT ARE THE SPECIFIC DUTIES OF THE INSPECTOR OF ELECTIONS?
As stated above, the role of the inspector of elections is far broader than just showing up the night of the meeting to open and tally the ballots. The inspector of elections is responsible for the following:
• Updating the voter list and candidate registration lists within two (2) days of notice of any changes by a member, candidate, or the association. Because members have a right to review their personal information on these lists up to sixty (60) days before the election, the inspector of elections must be appointed well before the election. While the civil code does not identify when the inspector must be appointed, given this responsibility, the inspector should be appointed at the same time the election is scheduled, if not earlier. Boards should consider including language in their appointment of the inspector that the inspector shall serve as the inspector of elections for the upcoming election, and any future elections until a new inspector of elections is appointed by the board. That will at least provide the association with someone to rely on should there be issues related to a future election and a new inspector of elections has not yet been appointed for that election.
• Delivering, or causing to be delivered, at least 30 days before an election the ballots and election rules. Ballots must be mailed, but the election rules can be posted on a website if the ballots contain, in at least 12 point font, the phrase “The rules governing this election may be
found here: [insert website address where election rules are posted].”
• Determining the number of memberships entitled to vote and the voting power of each.
• Determining the authenticity, validity, and effect of proxies, if any.
• Receiving sealed ballots and proxies. • Hearing and determining all challenges and questions in any way arising out of or in connection with the right to vote.
• Counting and tabulating all votes. • Determining when the polls shall close, consistent with the governing documents.
• Determining the tabulated results of the election. • Performing any acts as may be proper to conduct the election with fairness to all members in accordance with the Civil Code, the Corporations Code, and all applicable rules of the association regarding the conduct of the election that are not in conflict with this article.
• Maintaining or directing the location for maintaining all election related records until the time for challenging the election has passed.
As stated in the Civil Code, an inspector of elections shall perform all duties impartially, in good faith, to the best of the inspector of election’s ability, and as expeditiously as is practical. If there are three inspectors of elections, the decision or act of a majority shall be effective in all respects as the decision or act of all. Any report made by the inspector or inspectors of elections is prima facie evidence of the facts stated in the report.
Among the most challenging responsibilities of the inspector of elections, and the one which may dissuade members from acting as an inspector of elections, is the fact that the inspector of elections is responsible for hearing and determining all challenges and questions in any way arising out of or in connection with the right to vote, and perform any actions as may be proper to conduct a fair election. This means that a member who acts as the inspector may be faced with determining issues such as if their friends and neighbors have a right to vote or their voting power (i.e. the number of votes they are entitled to cast). Some members who are not prepared to impartially evaluate and make determinations on election related issues, especially when it may involve the rights of their friends and neighbors, may not feel comfortable or confident in dealing with such issues. This is especially important in light of the fact that election challenges can be brought by an owner by filing a simple form and submitting the matter in small claims court. And while an owner has a right to recover attorney’s fees on election challenges, associations no longer have such a right in a post-SB 323 world. That is an important consideration that boards need to keep in mind in Continued on page 24
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