Q&A: Voting Rules on Boards

Q Can you please direct me to New Jersey regulations regarding voting procedures for HOA boards? Our bylaws state that board elections must be conducted by secret ballot. In a recent election, one candidate ran with a platform plank suggesting that the management company be changed. For the election, the management company first sent out an erroneous proxy ballot (wrong candidate mentioned) then sent out a correct proxy ballot less than 10 days before the board’s annual meeting and election. The proxy ballot required, on the same sheet of paper, that the owner sign the ballot. The return envelope had the unit owner’s unit number as well. The ballots were opened by the management company during the annual meeting. No one from the board directly observed the counting, and no third party observed or certified the tally. During the process, the management company’s agent left the room with their cell phone, then returned to continue counting. The management company then announced the winners which did not include the person suggesting the change. Only the incumbents supposedly won. Particularly distressing was the fact that one of the owners inquired what the final tally was and was ignored. To me, such conduct is in direct violation of the bylaws. And requiring that an owner sign the ballot when there is an issue involving the management company seems intimidating.

—Worried Stakeholder

A “Your question concerns voting procedures in a homeowners association (HOA),” says Stephanie A. Dubanowitz, an attorney with the New Jersey-based law firm Celentano, Stadtmauer and Walentowicz, LLP, “a common interest form of ownership in which a recorded declaration of covenants and restrictions establishes that each owners of an individual lot is automatically a member of the association upon acquisition of the lot. A HOA is managed by an elected Board of Trustees and is governed by an adopted set of bylaws, which govern the administration and operation of the HOA, the duties and powers of the board and its officers and the rights and obligations of its members.

“In your question, you note that the correct proxy ballots were mailed less than ten days before the annual meeting. I assume, therefore, that the bylaws require that ballots are mailed at least ten days prior to the meeting. If so, then the validity of the election is questionable since the distribution of the ballots violated the time provision as stated in the bylaws.

“Secondly, you express concern over the confidentiality of the votes. Although the bylaws state that the election is secret, it is often necessary to designate the name, signature and unit number of each voter in order to verify the results. Your final concern is that the voting inspection process was deficient. Although management companies are often involved in the process, the board attorney, at the very least, should have been involved in the process.

“There are also election inspectors who may oversee the election so long as they are not directly involved in the outcome of the election. These inspectors, who may even be employees of the management company, must first subscribe an oath to execute the duties of an inspector with strict impartiality. They are then charged with the duty of verifying the qualifications of each voter and accurately tabulating and reporting the election results to the secretary of the board. Inspectors are very important in elections, especially in elections where there are important issues at stake, in order to avoid charges of tampering or election fraud.”

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