SB 1265 (Wieckowski) Common interest developments: elections.

Would require changes to the election rules regarding director qualifications, candidate nominations, and meeting room accessibility. It would also prohibit the suspension of voting privileges and would require the election rules be distributed with the ballots.

Current Status: Dead

FindHOALaw Quick Summary:

Existing law requires a homeowners association to adopt rules that specify the qualifications for candidates for the board of directors, qualifications for voting, the voting power of each membership, the authenticity, validity, and effect of proxies, and the voting period for elections, including the times at which polls will open and close, consistent with the governing documents. The act requires the sealed ballots to be held at all times in the custody of the inspector or inspectors of elections or at a designated location until after the tabulation of the vote.

This bill would amend Civil Code Sections 5105 and 5125 to delete the requirement that the elections rules specify the qualifications for candidates for the board and the qualifications for voting. The bill would prohibit a rule that would disallow a member from being nominated for any reason other than not being a member at the time of the nomination. The bill would require the rules to ensure that the meeting at which ballots are counted is accessible to seniors and persons with disabilities. The bill would also require the rules to mandate the elections notice include provisions regarding the return and counting of ballots, nominations, and list of candidates’ names that will appear on the ballot. The bill would require the rules to mandate that the elections rules be mailed with the ballots at least 30 days prior to the election. The bill would require the rules to prohibit the denial of a ballot to a member for any reason other than not being a member, and to a person with power of attorney for an owner. This bill would require the voter envelopes and nominee registration list, in addition to the ballots, to be in the custody of the inspector of elections or at a designated location until after vote tabulation.

**UPDATE: On April 2, 2018, the proposed text of AB 1265 was amended to clarify that CIDs function as quasi-governments, require the association adopt election rules at least 90 days prior to any election; require the election notice to provide the list of all voters and voting power; require any errors or omissions to the lists of candidates or voters to be corrected within two business days; require that the signed voter envelopes, voter list, and candidate registration list be considered association records subject to inspection and copying; delete the exception for a third party inspector of election that is employed or under contract to the association if allowed for in the election rules; allow a prevailing owner in a civil action in small claims court to be awarded court costs and reasonable attorney’s fees; prohibit an association from filing a civil action regarding a dispute in which a member has requested dispute resolution unless the association has complied with Civil Code Section 5910, and remove the exemption for assessment disputes in the dispute resolution process.

4801. The Legislature hereby finds and declares both of the following:
(a) Common interest developments function as quasi-governmental entities, paralleling almost every way many ways the powers, duties, and responsibilities of a local government.
(b) As a result, it is the intent of the Legislature for this chapter to ensure that democratic principles and practices are in place with respect to the governance of common interest developments.

5105. (a) An association shall adopt rules, at least 90 days before any election, in accordance with the procedures prescribed by Article 5 (commencing with Section 4340) of Chapter 3, that do all of the following:…

(8) Require notice to be provided of all of the following:…

(E) The list of all voters by either name or parcel number, and voting power.

(9) Require any errors or omissions to the list of candidates’ names or list of voters to be immediately reported to the inspector or inspectors and require necessary corrections to be made within two business days.

5110. (a) The association shall select an independent third party or parties as an inspector of elections. The number of inspectors of elections shall be one or three.

(b) For the purposes of this section, an independent third party includes, but is not limited to, a volunteer poll worker with the county registrar of voters, a licensee of the California Board of Accountancy, or a notary public. An independent third party may be a member, but may not be a director or a candidate for director or be related to a director or to a candidate for director. An independent third party may not be a person, business entity, or subdivision of a business entity who is currently employed or under contract to the association for any compensable services unless expressly authorized by rules of the association adopted pursuant to paragraph (5) of subdivision (a) of Section 5105. services. services other than serving as an inspector of elections.

5125. (a) The sealed ballots, signed voter envelopes, voter list, and nominee candidate registration list shall at all times be in the custody of the inspector or inspectors of elections or at a location designated by the inspector or inspectors until after the tabulation of the vote, and until the time allowed by Section 5145 for challenging the election has expired, at which time custody shall be transferred to the association. If there is a recount or other challenge to the election process, the inspector or inspectors of elections shall, upon written request, make the ballots available for inspection and review by an association member or the member’s authorized representative. Any recount shall be conducted in a manner that preserves the confidentiality of the vote.

(b) Notwithstanding Section 5200, ballots, signed voter envelopes, voter list, and candidate registration list shall be association records subject to inspection and copying by a member.

5145. (a) A member of an association may bring a civil action for declaratory or equitable relief for a violation of this article by the association, including, but not limited to, injunctive relief, restitution, or a combination thereof, within one year of the date the cause of action accrues. that the inspector or inspectors of elections notifies the board and membership of the election results or the cause of action accrues, whichever is later. Upon a finding that the election procedures of this article, or the adoption of and the adherence to rules provided by Article 5 (commencing with Section 4340) of Chapter 3, were not followed, a court mayshall void any the results of the election. election, unless the association establishes, clear and convincing a preponderance of the evidence, that the failure of the association to follow this article or the election operating rules was unintentional and did not affect the results of the election. The findings of the court shall be stated in writing as part of the record.

(b) A member who prevails in a civil action to enforce the member’s rights pursuant to this article shall be entitled to reasonable attorney’s fees and court costs, and the court may impose a civil penalty of up to five hundred dollars ($500) for each violation, except that each identical violation shall be subject to only one penalty if the violation affects each member of the association equally. A prevailing association shall not recover any costs, unless the court finds the action to be frivolous, unreasonable, or without foundation. If a member prevails in a civil action brought in small claims court, the member shall be awarded court costs and reasonable attorney’s fees incurred for consulting an attorney in connection with this civil action.

(c) A cause of action under Sections 5100 to 5130, inclusive, with respect to access to association resources by a candidate or member advocating a point of view, the receipt of a ballot by a member, or the counting, tabulation, or reporting of, or access to, ballots for inspection and review after tabulation may be brought in small claims court if the amount of the demand does not exceed the jurisdiction of that court. subdivision (a) may be brought in either the Superior Court or, if the amount of the demand does not exceed the jurisdictional amount of the small claims court, in small claims court.

5910.1 An association may not file a civil action regarding a dispute in which the member has requested dispute resolution unless the association has complied with Section 5910. 5910 by engaging in good faith in the internal dispute resolution procedures as set forth therein after a member invokes those procedures.

5930. (a) An association or a member may not file an enforcement action in the superior court unless the parties have endeavored to submit their dispute to alternative dispute resolution pursuant to this article.

(b) This section applies only to an enforcement action that is solely for declaratory, injunctive, or writ relief, or for that relief in conjunction with a claim for monetary damages not in excess of the jurisdictional limits stated in Sections 116.220 and 116.221 of the Code of Civil Procedure.

(d)Except as otherwise provided by law, this section does not apply to an assessment dispute.

**UPDATE: On May 15, 2018, the proposed text of AB 1265 was amended to authorize an association’s bylaws to disqualify members who have been convicted of certain felonies and to allow distribution of the election rules via an Internet Web site.

(B) A copy of the election operating rules. Delivery of the election operating rules may be accomplished by either of the following methods:

(i) Posting the election operating rules to an Internet Web site and including the corresponding Internet Web site address on the ballot together with the phrase, in at least 12-point font: “The rules governing this election may be found here:”

(ii) Individual delivery.

(B) Notwithstanding paragraph (A), an association’s bylaws may disqualify a member from running for an elective office if, within the past 20 years, the member has been convicted of a felony involving accepting or giving, or offering to give, a bribe, the embezzlement of money, the extortion or theft of money, perjury, or conspiracy to commit any of those crimes. For purposes of this paragraph, “conviction of a felony” includes a conviction of a felony in this state and a conviction under the laws of any other state, the United States, or any foreign government or country of a crime that, if committed in this state, would be a felony, and for which the person has not received a pardon from a person or entity authorized to grant the pardon.

**UPDATE: On June 26, 2018, the proposed text of AB 1265 was amended to delete Section 4801.

SECTION 1.Section 4801 is added to the Civil Code, to read:

4801.The Legislature hereby finds and declares both of the following:

(a)Common interest developments function as quasi-governmental entities, paralleling in many ways the powers, duties, and responsibilities of a local government.

(b)As a result, it is the intent of the Legislature for this chapter to ensure that democratic principles and practices are in place with respect to the governance of common interest developments.

**UPDATE: The Governor vetoed SB 1265 on September 30, 2018. A copy of the veto message can be found here.