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Getting Out the Vote Holding Fair Elections

 When it comes to running board elections in a condo community, 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. One election  tabulation company representative remembers an extremely heated election she  monitored where physical fighting even broke out. “It was bad,” she wryly recalls.  

 “Elections in associations can either be sleepers where there is a ton of apathy  and you can't even get enough candidates to fill the seats to ones that are  highly controversial,” says attorney Ron Perl of Hill Wallack in Princeton, New Jersey.  

 One of the most frequent dilemmas communities face is actually getting anybody  onto the ballot in the first place. Robert Tierman, a partner with Litwin & Tierman, P.A., with offices in New York and New Jersey, remembers one association  that had a problem of getting residents who actually wanted to run for a  position on the board of directors. “This led to there not being an election; whoever wanted the position just got  it,” he says. “The board was not fully constituted and there was a vacancy for a whole year. No  major issues resulted from the situation but the board was less efficient and  effective.”  

 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 an association board if these few  basic guidelines are followed.  

 Follow the Bylaws

 Check the bylaws to find out how often your elections should be held, and when. “The bylaws contain the term of office of board members and say when the  elections should be held as well as the frequency of the election,” says Perl. “Most bylaws provide for staggered terms so that you most often have elections  annually but I have seen associations where because of the staggering of terms  they have elections two consecutive years and then the third year the election  is skipped because no one's term is up. The true answer is you have to follow  the provisions in your bylaws.”  

 Most legal professionals will agree that having staggered terms is preferable to  overturning the entire board each year. “Our recommendation is to never have the entire board up for election at the same  time," says attorney Jeffrey A. Sirot of the law firm of Greenbaum Rowe Smith & Davis, LLP in Roseland, New Jersey.  Staggered terms provide for stability and make sure that you always have  people on the board that have historical knowledge,” 

 Residents may also have the option to organize their own elections, if the board  neglects to do so. “Most bylaws contain a provision that a certain percentage of the membership can  call a special meeting,” says Sirot. “The bylaws also often contain provision for the removal of board members and the  association may consider removing board members that do not comply with the  bylaws.”  

 “In New Jersey, the New Jersey Department of Community Affairs has a group that  handles complaints by owners of community associations where the board members  may not be following the bylaws. That is one avenue of attack. They will  normally contact the board and say 'we understand that you are not organizing  elections under the bylaws and under the Planned Real Estate Development Act  you need to properly conduct the affairs of the association'. You might get  them to light a fire under the board,” Perl suggests.  

“For condo associations," adds Tierman, "each unit could be allocated a number of votes equal to the  percentage of common interest owned, but some condo associations allow unit owners to vote  on a one-vote-per-unit basis.”  

 He also explains that each unit owner can be allowed  to cast the number of votes allocated to such owner for a number of candidates  equal to the number of board seats up for election. He also explains that as an  alternative, some associations allow what’s called cumulative voting, where owners can multiply the number of votes  they have times the number of board seats up for election and then distribute  the total among one or more candidates of their choosing. Although it sounds  confusing, the bylaws are a great instruction manual for having a fair election—so reading them, understanding them, and applying them to elections provides a  virtual road map through the process.  

 Get Outside Help

 If your board doesn’t want to be personally responsible for administering the election, an outside  vendor can do it for you. The vendor can handle a part of the event, such as  tallying up the votes, or they can run the entire thing. Elections can be  heated as it is, so the voting process should run smoothly and without any  hiccups.  

 Linda Chiarelli-Gibbs is with Honest Ballot Association, an elections tabulation  company based in Floral Park, New York, that was actually founded by Theodore  Roosevelt in 1909. “He started this association because he wanted to have honest and fair elections,  and it’s what I go by,” says Gibbs, who runs elections for co-ops, condo communities, unions, associations and  some counties. “I’ve worked on terraces if the lobby is too hot, in a local school or church if the  building doesn’t have a place to hold an election—even in a laundry room.”  

 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. Communication is key in both spreading the word as well as  encouraging participation on both the candidate and the voter sides of the equation. “Where there is apathy in the community is usually a result of lack of  communication," says Perl. "Communication helps inform people as to what is going on, the  kinds of decisions the association is making, the challenges, where the money  is being spent, and the need to be involved."

 Once the word has been spread, it’s time to vote. “How we do the voting depends on the election,” says Gibbs. “We can do a machine vote, touch screen, scanners or paper—it all depends on the community.”  

 Prepare the Proxies

 Not everyone can physically make to vote in an election, but they still want their votes to count -- and  that’s where the proxy comes in. “A proxy allows one member to appoint another person to be their representative  to vote for them. That representative becomes their proxy,” says Perl. He explains that there are two types of proxies: non-directed and  directed. Non-directed proxies simply appoints someone to cast your vote as  they see fit. One person acts as another. A directed proxy actually contains  the names of the candidates and the owner then directs their proxy how to vote.  This proxy is cast on behalf of the unit owner and their votes are counted just  like he or she was there in person, Perl says.  

 Sirot adds that proxies can be useful because they allow members who cannot  attend the meeting to vote for the candidates. “If there is any concern that a resident cannot make it, they should be  encouraged to use a proxy,” he says.  

 In order to deter fraud, which is can occur with proxies, Sirot recommends  having proxies that cannot be duplicated using for example, an anonymous code  or stamp for each.  

 Usually community associations and HOAs provide a form for this that is distributed to owners  in advance of the meeting. The goal is to get enough owners voting by proxy to  supplement those actually attending, and yield the majority necessary to  conduct the election.  

 Proxies are revocable -- which means the unit owner can change his or her mind -- and they expire after eleven months. “Proxies are sometimes difficult for owners to understand,” says Gibbs. “In my opinion, it’s always been a hassle with them because people complain that others have gone  out and gotten proxies. Any proxy will hold up in court, even if you wrote it  on toilet tissue, as long as the property lease owner is in the apartment. They  can always designate someone to vote for them.”  

 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 Gibbs’ can do the counting or, says Tierman, “The association or condo president appoints two or three inspectors of election, who  are asked to sign an oath indicating that they will count the votes honestly  and fairly. It also is a good practice for the ballots to be sealed in an  envelope or the ballot box, with the seal broken and the ballots removed only  under the supervision of the inspectors of election,” he says.  

 Demand a Recount!

 Well...not really. Typically recounts are not demanded or conducted unless a very small  number of votes determined who was elected, or if there is some suspicion that the  count was not properly conducted. “An apartment owner can seek court review of the count or any other aspects of  the election by filing a petition with the court within four months after the  election,” says Tierman. “Typically, owners controlling 25 percent of ownership interests can demand a  special meeting to vote on the removal of one or more board members.”  

Like fingerprints and snowflakes, every election is different and unique, and can  bring with it a host of excitement -- and problems. Tierman tells the story of a  association where a board member was indicted for allegedly committing a financial  crime unrelated to the association. The board asked him to step down, but he refused. “Since the annual election was approaching in several months, the board decided  not to call a special meeting to remove him,” says Tierman. “The annual election approached and he insisted on running for re-election. There  was no provision of applicable law or the association's bylaws that prohibited his  running."    

 The board member said he was unfairly accused and should be deemed innocent  until proven guilty. The board removed him from the board-nominated slate, but  they were uncomfortable knowing that he could still be re-elected. “The board advised him that if he did insist on running, they would have no  choice but to disclose to shareholders prior to the election that he had been  indicted. At the meeting, he finally saw the light and withdrew his candidacy.  The lesson is that the board concluded that the only way to deal with the  situation was to let them decide whether to re-elect him in spite of the  indictment.”  

 “There are lots of challenges,” says Gibbs, who conducted a very highly-contested election where there were  more proxies than people. She cites another election where it was claimed that  the whole board was crooked. Overall, Gibbs says “There’s a lot of integrity for those people who are running for the board, and those  who are monitoring the election.” 

 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.  

 Lisa Iannucci is a New York-based freelance writer and a frequent contributor to  The New Jersey Cooperator. Editorial Assistant Maggie Puniewska contributed to  this article.

 

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