BILL NUMBER: AB 1726 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 12, 2010
AMENDED IN ASSEMBLY MARCH 18, 2010
INTRODUCED BY Assembly Member Swanson
FEBRUARY 3, 2010
An act to amend Section 1363.03 of the Civil Code, relating to
common interest developments.
LEGISLATIVE COUNSEL'S DIGEST
AB 1726, as amended, Swanson. Common interest developments:
ballots: quorums.
The Davis-Stirling Common Interest Development Act governs the
establishment and management of common interest developments. These
provisions require that a common interest development be managed by
an association and that elections related to the governance or
administration of the common interest development conform to
specified requirements, including the establishment of a quorum.
Existing law provides for votes on specified matters to be held by
secret ballot and requires the ballots to be sent, with 2
preaddressed envelopes, to each member of the association, in
accordance with the model used by California counties for ensuring
confidentiality of "vote by mail" ballots.
This bill would clarify that the ballots are mailed in accordance
with the model used by California counties for ensuring
confidentiality of "voter absentee" ballots, and would specify that
each ballot be placed into an inner envelope that is sealed and then
placed into an outside mailing envelope addressed to the inspector
for the election.
This bill would provide that, in the event there is not a
quorum for a members meeting or for an election of directors, the
meeting may be adjourned and that the except for
associations whose governing documents provide for a
reduced quorum, as provided, the quorum required for purposes of a
subsequent members members'
meeting or election of directors would require a quorum of 33% of the
association membership entitled to vote. This bill would
require that these provisions be disclosed in the members'
election materials mailed to the members. This bill would
also provide that these provisions do not apply to any other
part of the act.
This bill would also make technical, clarifying changes to that
provision.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1363.03 of the Civil Code is amended to read:
1363.03. (a) An association shall adopt rules, in accordance with
the procedures prescribed by Article 4 (commencing with Section
1357.100) of Chapter 2, that do all of the following:
(1) Ensure that if any candidate or member advocating a point of
view is provided access to association media, newsletters, or
Internet Web sites during a campaign, for purposes that are
reasonably related to that election, equal access shall be provided
to all candidates and members advocating a point of view, including
those not endorsed by the board, for purposes that are reasonably
related to the election. The association shall not edit or redact any
content from these communications, but may include a statement
specifying that the candidate or member, and not the association, is
responsible for that content.
(2) Ensure access to the common area meeting space, if any exists,
during a campaign, at no cost, to all candidates, including those
who are not incumbents, and to all members advocating a point of
view, including those not endorsed by the board, for purposes
reasonably related to the election.
(3) Specify the qualifications for candidates for the board of
directors and any other elected position, and procedures for the
nomination of candidates, consistent with the governing documents.
(4) A nomination or election procedure shall not be deemed
reasonable if it disallows any member of the association from
nominating himself or herself for election to the board of directors.
(5) Specify the 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.
(6) Specify a method of selecting one or three independent third
parties as inspector, or inspectors, of election utilizing one of the
following methods:
(A) Appointment of the inspector or inspectors by the board.
(B) Election of the inspector or inspectors by the members of the
association.
(C) Any other method for selecting the inspector or inspectors.
(7) Allow the inspector, or inspectors, to appoint and oversee
additional persons to verify signatures and to count and tabulate
votes as the inspector or inspectors deem appropriate, provided that
the persons are independent third parties.
(b) Notwithstanding any other law or provision of the governing
documents, elections regarding assessments legally requiring a vote,
election and removal of members of the association board of
directors, amendments to the governing documents, or the grant of
exclusive use of common area property pursuant to Section 1363.07
shall be held by secret ballot in accordance with the procedures set
forth in this section. A quorum shall be required only if so stated
in the governing documents of the association or other provisions of
law. If a quorum is required by the governing documents, each outside
mailing envelope completed pursuant to subdivision (f) received by
the inspector of elections shall be treated as a member present at a
meeting for purposes of establishing a quorum. An association shall
allow for cumulative voting using the secret ballot procedures
provided in this section, if cumulative voting is provided for in the
governing documents.
(c) (1) The association shall select an independent third party or
parties as an inspector of election. The number of inspectors of
election shall be one or three.
(2) 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 of the association, but may not be a member of the board of
directors or a candidate for the board of directors or related to a
member of the board of directors or a candidate for the board of
directors. An independent third party may not be a person, business
entity, or subdivision of a business entity that is currently
employed by or under contract with the association for any
compensable services unless expressly authorized by rules of the
association adopted pursuant to paragraph (6) of subdivision (a).
(3) The inspector or inspectors of election shall do all of the
following:
(A) Determine the number of memberships entitled to vote and the
voting power of each.
(B) Determine the authenticity, validity, and effect of proxies,
if any.
(C) Receive ballots.
(D) Hear and determine all challenges and questions in any way
arising out of or in connection with the right to vote.
(E) Count and tabulate all votes.
(F) Determine when the polls shall close, consistent with the
governing documents.
(G) Determine the tabulated results of the election.
(H) Perform any acts as may be proper to conduct the election with
fairness to all members in accordance with this section, the
Corporations Code, and all applicable rules of the association
regarding the conduct of the election that are not in conflict with
this section.
(4) An inspector of election shall perform his or her duties
impartially, in good faith, to the best of his or her ability, and as
expeditiously as is practical. If there are three inspectors of
election, 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 election is prima facie evidence of the
facts stated in the report.
(d) For purposes of this section, the following definitions shall
apply:
(1) "Proxy" means a written authorization signed by a member or
the authorized representative of the member that gives another member
or members the power to vote on behalf of that member.
(2) "Sign or signed" means the placing of the member's name on the
proxy (whether by manual signature, typewriting, telegraphic
transmission, or otherwise) by the member or authorized
representative of the member.
(e) Proxies shall not be construed or used in lieu of a ballot. An
association may use proxies if permitted or required by the bylaws
of the association and if those proxies meet the requirements of this
article, other laws, and the association's governing documents, but
the association shall not be required to prepare or distribute
proxies pursuant to this section. Any instruction given in a proxy
issued for an election that directs the manner in which the proxy
holder is to cast the vote shall be set forth on a separate page of
the proxy that can be detached and given to the proxy holder to
retain. The proxy holder shall cast the member's vote by secret
ballot. The proxy may be revoked by the member prior to the receipt
of the ballot by the inspector of elections as described in Section
7613 of the Corporations Code.
(f) Ballots and two preaddressed envelopes with instructions on
how to return ballots shall be mailed by first-class mail or
delivered by the association to every member not less than 30 days
prior to the deadline for voting. In order to preserve
confidentiality, a voter may not be identified by name, address, or
lot, parcel, or unit number on the ballot. The association shall use
as a model those procedures used by California counties for ensuring
confidentiality of voter absentee ballots, including all of the
following:
(1) The ballot itself is not signed by the voter, but is inserted
into an inner envelope that is sealed. The envelope is inserted into
an outside mailing envelope that is sealed. In the upper left-hand
corner of the outside mailing envelope, the voter shall sign his or
her name and indicate the address or separate interest identifier
that entitles him or her to vote.
(2) The outside mailing envelope is addressed to the inspector or
inspectors of election, who will be tallying the votes. The envelope
may be mailed or delivered by hand to a location specified by the
inspector or inspectors of election. The member may request a receipt
for delivery.
(g) All votes shall be counted and tabulated by the inspector or
inspectors of election or his or her designee in public at a properly
noticed open meeting of the board of directors or members. Any
candidate or other member of the association may witness the counting
and tabulation of the votes. No person, including a member of the
association or an employee of the management company, shall open or
otherwise review any ballot prior to the time and place at which the
ballots are counted and tabulated. The inspector of election, or his
or her designee, may verify the member's information and signature on
the outside mailing envelope prior to the meeting at which ballots
are tabulated. Once a secret ballot is received by the inspector of
elections, it shall be irrevocable.
(h) The tabulated results of the election shall be promptly
reported to the board of directors of the association and shall be
recorded in the minutes of the next meeting of the board of directors
and shall be available for review by members of the association.
Within 15 days of the election, the board shall publicize the
tabulated results of the election in a communication directed to all
members.
(i) The sealed ballots at all times shall be in the custody of the
inspector or inspectors of election or at a location designated by
the inspector or inspectors until after the tabulation of the vote,
and until the time allowed by Section 7527 of the Corporations Code
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
election shall, upon written request, make the ballots available for
inspection and review by an association member or his or her
authorized representative. Any recount shall be conducted in a manner
that preserves the confidentiality of the vote.
(j) After the transfer of the ballots to the association, the
ballots shall be stored by the association in a secure place for no
less than one year after the date of the election.
(k) Notwithstanding any other provision of law, the rules adopted
pursuant to this section may provide for the nomination of candidates
from the floor of membership meetings or nomination by any other
manner. Those rules may permit write-in candidates for ballots.
( l ) Except for the meeting to count the votes
required in subdivision (f), an election may be conducted entirely by
mail unless otherwise specified in the governing documents.
(m) The provisions of this section apply to both incorporated and
unincorporated associations, notwithstanding any contrary provision
of the governing documents.
(n) The procedures set forth in this section shall apply to votes
cast directly by the membership, but do not apply to votes cast by
delegates or other elected representatives.
(o) In the event of a conflict between this section and the
provisions of the Nonprofit Mutual Benefit Corporation Law (Part 3
(commencing with Section 7110) of Division 2 of Title 1 of the
Corporations Code) relating to elections, the provisions of this
section shall prevail.
(p) (1) In the event there is not a quorum for a members meeting
or for an election of directors the meeting may be adjourned. The
quorum required for the subsequent meeting or election of directors
shall be 33 percent of the association membership entitled to vote.
(p) (1) Except for associations whose governing documents provide
for a reduced quorum for an adjourned members' meeting or election of
directors that could not be held due to the failure to obtain a
quorum, the quorum required for purposes of a subsequent members'
meeting or election of directors shall be 33 percent of the
association membership entitled to vote.
(2) The association shall disclose the provisions of paragraph (1)
in the members' election materials that are mailed to the members.
(2)
(3) The provisions of paragraph (1) shall only apply to
this section and are not applicable to any other provision in this
title.