Q&A: Unfair Election Suspected

Q One of our board members has been president for many years. She runs the building on a unilateral basis, giving out very little information about the business of the condo. Unit owners have little influence because she is elected by the board, not by unit owners. When it comes to elections, she controls them. Our accounting firm runs the election. After the ballots are cast, the president (who is also one of the candidates) takes all of the ballots and mails them to the accounting firm. Is that fair? The accounting firm counts the votes, and I’m sure they do it in an honorable way, but what if the ballots have already been manipulated by the president? We want to get a fair count. Who should we go to to deal with this?

—A Voting Unit Owner

A “The New Jersey courts have held that the Planned Real Estate Development Full Disclosure Act (PREDFDA) requires fair and open elections for the board of directors of associations,” says Hubert C. Cutolo, Esq. of the law firm of Sodini & Spina, LLC in Edison. “Your current board must exercise their legislatively established powers in a manner that promotes the goal of fair and open elections. PREDFDA does not set forth specific guidelines that must be followed to adhere to the fair and open standard for elections. Notwithstanding the lack of specific statutory procedures for elections, your current board should strictly adhere to any procedures outlined in your governing documents. You should review the governing documents of your association to ascertain whether specific election procedures are outlined. Most governing documents contain provisions that outline a basic agenda for elections and also contain procedures such as the appointment of inspectors for elections. The appointment of neutral inspectors can help avoid charges of tampering that may occur if ‘concerned parties’ are involved in the tabulation of ballots.

“After ensuring that the current board is following any procedures outlined in governing documents, you should request that your board adopt a written policy providing for exact procedures to be followed for elections. A written policy would assist current board members in fulfilling their responsibility to hold fair and open elections. Furthermore, you should advise your current board of the reservations that you have with the current election procedures. You have a valid concern with your president, also an interested party, collecting or sending ballots to the disinterested accounting firm. Your current board should seek to avoid even the appearance of impropriety.

“If your current board refuses to implement a written policy concerning elections, you may contact the Department of Community Affairs and notify them of your concern with your association’s election process. The Department of Community Affairs may assist your board in implementing an election process that is fair and open.”

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Comments

  • In July 2017, the NJ Planned Real Estate Development Full Disclosure Act (PREDFDA) was amended to require, among other things, that no term of office on a NJ common-interest association board shall be longer than 4 years, and that nominations must be open freely to any unit owner in good standing (i.e. not delinquent in paying dues). The board may select its officers, but may not withhold or reserve elected seats from the membership. Unfortunately, asking DCA for assistance will yield little, because there is no funding for enforcement.