Is an association obligated to provide board candidates access to association media for campaign purposes, and what action, if any, can the association take if campaign materials are derogatory, inflammatory or otherwise controversial?
Associations are not obligated to provide board candidates access to association media for campaign purposes. Association election procedures are governed by Civil Code §1363.03 et seq. Civil Code §1363.03(1) provides that an association shall adopt election rules that ensure that if any candidate advocating a point of view is provided access to association media, newsletters or Internet websites for campaign purposes, then equal access shall be provided to all candidates.
In short, an association can simply refuse to allow board candidates access to association media for campaign purposes—as long as all candidates are denied access. Pursuant to Civil Code §1363.03(1), if one candidate is granted access to association media for campaign purposes, then all candidates must be given access.
An association is prohibited from editing or redacting campaign submissions, regardless of whether the association endorses the candidate’s point of view. Civil Code §1363.03(1) specifically states that “the association shall not edit or redact any content from the communications”. In light of this provision, an association would be required to publish the candidate’s statement as written, regardless of whether it was derogatory, inflammatory, false, or controversial.
If candidates are allowed access to association media, the association can—and should—include a statement specifying that the candidate, and not the association, is responsible for that content. However, such a statement will not prevent an angry homeowner from naming the association in a lawsuit for defamation. While the association would likely prevail in any such lawsuit, it would still have to endure the costs of litigation. In order to avoid any potential liability and expense, associations should think very carefully before it grants candidates unfettered access to association media for campaign purposes.