Reader Questions: Director Proxies, Bare Minutes, and Election ChallengesFeb 21, 2022
By Kelly G. Richardson, Esq. CCAL
Hi Kelly, one of our board members sometimes is not available to attend meetings either in person or telephonically and has asked if he could submit a written approve or disapprove sealed proxy for agenda items when the board votes on them in the meeting. Regards, F.B. Temecula
Dear F.B.: While the law allows a member to give another member their proxy to vote on their behalf at a membership meeting, there is no equivalent proxy for board votes. Directors who are unable to attend board meetings cannot register their votes. Also, note that while the law does allow for directors to participate telephonically or virtually, there is no requirement that they do so. From time to time a director who travels extensively will demand that to be permitted to dial in or log into the meeting, but the board is not required to do so. Of course, with the increasing comfort of partially virtual meetings, future disputes on that point may decrease.
Thanks for your question, Kelly
Kelly: I am concerned that our board meetings now have no public documentation and that the details of the discussions are not included in the minutes or otherwise recorded. The specific basis and rationale for contract initiation, cancellation, and replacement are not subject to full disclosure by board process and procedures. Is that correct? J.G., San Diego
Dear J.G.: Minutes should not reflect comments, discussion, or board deliberations. Minutes should record when and where the meeting occurred, who attended, what reports were received and the content and outcome of motions. Board secretaries are not court reporters and should not have to decide which comments go in the minutes. The one time “whys and wherefores” are recorded is when a board resolution is prepared to document the reasons for a particularly important decision. Attending meetings is the best way to observe the discussion of a given decision.
Dear Mr. Richardson, I saw your recent article and a caption said that unfair elections can be overturned under Civil Code 5145 by a small claims judge. There are various violations in our election. I raised at the board meeting these violations and the board voted to continue with the election. So, I can have a small claims judge rescind the election. Does the HOA have the burden of proof to show it was a fair election? Thanks. E.H., Irvine
Election challenges can be filed in either Superior Court or Small Claims Court, depending upon the amount of money sought by the petitioner. These challenges can be expensive and often throw the HOA into chaos, and judges do not deal with them very often. Under Civil Code Section 5145(a), if the HOA can show that the procedural error did not affect the election’s outcome, the election may be preserved. Bluntly, HOAs often make technical procedural mistakes regarding elections, but usually the process is still fair and the error does not change the outcome. So, pick your battles very carefully. When there is a serious error in the election process, I often must give the bad news to the board that their election needs a “do-over.” Hopefully your board has consulted the HOA attorney and has been assured that the election can be preserved.
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