Do Your Pre-Election Notices Comply?
By now, most community associations have at least commenced the process of adopting new election rules in order to comply with the mandate of Senate Bill (SB) 323, which took effect on January 1, 2020. This is because, in most cases, adoption of new election rules will require a 28-day member comment period, and the new election rules must be adopted by the board at least 90 days before the association’s annual election.
Adoption of new election rules, however, is only the first step in complying with the new requirements imposed by SB 323. Once new election rules are in place, an association will need to comply with a host of new statutory notice requirements and deadlines commencing at least 90 days before a board election.
Call for Candidates
Most associations are accustomed to sending out a call for candidates in anticipation of an annual meeting. SB 323, however, imposes requirements on what information must be included in the call for candidates and how long the nomination period must remain open. Specially, SB 323 requires that an association must provide general notice of the procedure and deadline for submitting a nomination at least 30 days before any nomination deadline. This means that any call for candidates must be issued at least 30 days before the deadline for submitting nominations and must explain the procedure for submitting a nomination. This explanation should, at minimum, include whether the use of any prescribed form is required, where said form can be obtained, and where, how, and by when it must be returned.
Please note that it is not necessary for the association to distribute the nomination form to each member, so long as it gives “general notice” of all the information contained above at least 30 days before the nomination deadline. “General notice” may be given by mailing or by posting in the location within the common area designated for the giving of notices in the annual policy statement distributed to members. Individual delivery is required for any member who has requested individual delivery of notices.
Pre-Election 60-Day Disclosure
Following the close of candidates, and (ideally) after the association has completed IDR with any disqualified candidates so requesting, the association is required to give “general notice” of certain information at least 30 days before ballots are distributed. Because ballots must be distributed at least 30 days before an election, this notice must be given at least 60 days before the election. If ballots are mailed out sooner, however, the pre-election notice will need to be given earlier.
The pre-election notice must include all of the following: (1) the date and time by which, and the physical address where, ballots are to be returned by mail or handed to the inspector of elections; (2) the date, time, and location of the meeting at which ballots will be counted; and (3) the list of all candidates names that will appear on the ballot.
Like above, if any member has requested individual delivery of all general notices, the association will need to provide individual delivery (e.g., mailing) of the pre-election notice to the requesting member.
In addition to ballots, SB 323 now requires that a copy of the election operating rules be delivered to every member at least 30 days before an election. Delivery of the election operating rules may be accomplished by either enclosing the election rules with the ballot distributed by individual delivery, or by posting the election rules to an internet website and printing the corresponding internet website address on the ballot together with the phrase, in at least 12-point font: “The rules governing this election may be found here:”
For more information concerning association election in the post-SB 323 era, and to ensure that your association’s pre-election notices and ballots comply with the new law, please contact Roseman Law, APC.