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EMERGENCY LEGISLATION SIGNED
INTO LAW By Adrian J. Adams, Esq., Adams
& Kessler LLP This past
week Governor Schwarzenegger signed into law emergency clean-up legislation
that takes affect immediately. ELECTION RULES. The clean-up legislation clarifies
a number of problems created in Civ.Code §1363.03,
which requires all associations to adopt election rules. * Delegates Not Affected. The statute now
makes clear that election requirements do not apply to votes cast by delegates
or other elected representatives. * No Quorum Needed to Count Ballots. Inspectors
of election are now allowed to count ballots at a meeting without needing a
quorum to conduct the meeting. If the election is entirely through the mail,
ballots must still be counted at an open board or membership meeting. * Nominations from the Floor. Nomination
procedures in the election rules must be consistent with the governing
documents. If the documents allow for nominations from the floor or write-in
candidates, they must be included in the election rules. Election rules may
allow such nominations even if they are not required by the governing
documents. * Compliance with Governing Documents.
Although understood, the statute now specifically requires that rules regarding
qualifications for voting, authenticity and effect of proxies, voting periods,
etc. be consistent with the governing documents. * Assistant Inspectors. Inspectors of
election may now appoint assistants to verify signatures and count votes.
Assistants must meet the same qualifications as the inspectors. If the
association wants to include any person, business entity, or subdivision of a
business entity as an assistant, who is employed or under contract to the
association, those parties must be provided for in the election rules. * Removal of Directors. Secret ballots
must now be used when the membership votes to remove directors. * Proxies Allowed. Associations may use
and accept proxies if permitted in the bylaws, but associations are not
required to prepare or distribute proxies. A member may not revoke a proxy once
the ballot has been received by the inspector. * Ballots Count Toward
Quorum. If the documents require a quorum, the inspectors of election may
now treat each ballot they receive as though a member were present at the
meeting to establish quorum. * Ballots Irrevocable. Once a secret
ballot is received by the inspector of elections, it is irrevocable. * Cumulative Voting. Associations must
continue to use cumulative voting if their governing documents provide for it. * Mailing Labels. No longer must voters
print their name on the outer envelope. Associations now may use mailing labels
to identify voters. Voters must still sign the outer envelope. * Mail-In Elections. Except for the
meeting to count votes, elections may be conducted entirely by mail unless
otherwise specified in the governing documents. * Reporting Results. A report of the
election results now must include the vote totals for and against each issue or
candidate. INSPECTION OF RECORDS. The clean-up legislation also
addressed records inspection issues found in Civ.Code
§1365.2. * Electronic Media. Associations may now
deliver specifically identified records by electronic transmission or
machine-readable storage media as long as those records can be transmitted in a
redacted format that prevents the records from being altered. * Liability Limited. Protection from
liability as a result of identity theft or other breach of privacy because of
the failure to withhold or redact information was expanded to include claims by
third parties. OMBUDSMAN BILL. AB 770 was vetoed by the Governor
who commented the bill was not necessary at this time. Adrian J. Adams, Esq., is a Managing Partner of the law firm of Adams & Kessler LLP |
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