Q: I have a question regarding clarification of Civil Code 5115 — an “election” versus a “recall.” If bylaws say 51% for the “removal” of a director by the membership, but another bylaw reads a quorum can be as low as 15% for an election of directors, which one is in effect for a “recall” of a director? — MW, Chowchilla.
A: As you reference in your question, Civil Code 5115(d)(2) provides for a reduced membership quorum of 20% on the second try for a membership vote. Your HOA bylaws provide for an even lower second threshold attempt, which is permitted. The statute specifically applies the reduced quorum to election of directors. Governing document amendments, assessment votes, or recalls are not included.
Removing a director by recall is different from electing a director. Both require membership votes, but there are good reasons not to make governing document votes, assessment votes, and recall votes too easy to accomplish without a sizable amount of the membership participating.
In the unfortunate event a recall vote is petitioned, too often sitting boards don’t set a conditional election process to accompany the recall process. This election process is conditional, because it will only count if there are vacancies on the board created by recall of one or more directors.
Without a conditional election along with the recall vote, HOAs risk having no board in place. In recent years, the time period for recall votes was extended to allow HOAs time for a conditional election process (call for conditional candidates, announcement of conditional candidates and upcoming balloting, and balloting) so that there is now time after a petition received for the HOA to have a proper conditional election.
If the recall fails, counting the conditional ballots for filling vacated director seats is unnecessary.
Q: In your recent column, I read about Senate Bill 2159, which allows for electronic voting for homeowner association board members. Certainly, this has been a long time coming. I reviewed our association’s bylaws, which say that “election of directors shall be by secret written ballot.”
Does AB 2159 supersede our association’s bylaws or we must first attempt to modify the bylaws, which as you know, it is nearly impossible to get sufficient homeowners to vote. — FB, Temecula
A: Assembly Bill 2159, which takes effect Jan. 1, 2025, adds a new subpart “i” to Civil Code Section 5105. Fortunately, maintaining the secrecy of electronic ballots cast is a part of the new law, and in fact, electronic ballots are referred to in this new part of the statute as “electronic secret ballots.”
The new law also adds a new subpart “(c)(4)” to Civil Code Section 5110, which lists the requirements for Inspectors of Election. This states that any Inspector of Election using electronic voting must have a method to authenticate the voter’s identity, but must transmit the ballot in a way ensuring the secrecy of the ballot.
As to conflicts between the law and existing HOA governing documents, Civil Code Section 4205 states that if there is any conflict between the law and the CC&Rs, Articles of Incorporation, Bylaws and Operating Rules (aka “rules and regulations”), the law controls .
Kelly G. Richardson CCAL is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober LLP, a California law firm known for community association advice. Send column questions to Kelly@roattorneys.com .
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