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ASSOCIATION ELECTIONS
Welcome to the Era of Sharp Elbows
By Dave Feingold, Esq. and Matthew Haulk, Esq.
The 19th century historian and philosopher Thomas Carlyle was combative by nature, and was of the view that “‘[n]o man lives without jostling and being jostled. In all ways he has to elbow himself through the world, giving and receiving offense.’’ While cynical, the metaphor “sharp elbows” is part of the lexicon, used to refer to anything from British constables elbowing their way through crowds to ruthless businessmen. Today, it seems to be used most often to describe a politician who views giving offense to others as a strategic advantage.
Political rhetoric in local, state, and national elections has become increasingly less civil and hard to avoid as it is amplified by the ubiquitous nature of social media and electronic communications. This has predictably trickled down to association elections, where selecting volunteer leaders who will have an impact on a member’s home, money – and even family – can trigger strong emotions.
As the first and primary source of guidance for volunteer directors, the community manager has an important role to play, especially when it comes to educating sitting directors during an election on two important concepts: free speech rights and the association’s proper role during an election.
FREE SPEECH RIGHTS
Directors and members are often surprised, and dismayed, to learn that the association has little control over uncivil campaign advocacy. Common interest developments (“CID”) are considered “quasi-governmental” entities for many purposes, including when it comes to elections. California courts considering the broad free speech rights of community members have likened association elections to elections for public office, recognizing that “[p]ublic discussion about the qualifications of those who hold or who wish to hold positions of public trust presents the strongest possible case for application of the safeguards afforded by the First Amendment.” (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 473 (quoting from Matson v. Dvorak, 40 Cal.App.4th at 548).)
What this means is that a statement about a matter of community interest (e.g., an election), even if rightly perceived as offensive or misleading, is protected speech. That speech may cross the line into actionable defamation, which in broad terms is an unprivileged false written or oral statement of fact that causes harm to another person. As a community manager you do not need to become a legal scholar on the laws of free speech, defamation or the nuances of anti-SLAPP motions. Consult with legal counsel, as necessary. You do need to know that, while exceptions to the general rule exist, even offensive statements during an election more often than not fall into the category of protected speech.
Case law has confirmed this conclusion time and time again, and these examples are instructive:
• A statement made by a director running for re-election that a critic had “stolen from and defrauded the association” was not actionable defamation. Cabrera v. Alam (2011) 197 Cal. App.4th 1077.
• Statements at meetings and in newsletters accusing the manager of incompetence and demanding he be fired was not actionable. Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468.
• Statements by members in meetings and on a website promoting the recall of a director claiming the director was a “convicted criminal” and a “child molester” (or “pervert”, accounts differed) were not enough to avoid dismissal. Glassner v. Smith (Unpublished, not citable - 2015 WL 2127065).
• Defamation lawsuit filed by a critic of a national candidate who was called “a real dummy” and a “major loser” with “zero credibility” was dismissed. Jacobus v Trump (2017 NY Slip Op 27006 (January 9, 2017 Supreme Court, New York County).
The examples above are not meant to dissuade associations from doing everything they can to encourage and promote civility in the community or to take action as needed based on advice of counsel. They should. However, these examples do bring home the need to remember that having thick skin is an important safeguard against overreacting to such heated rhetoric.
THE PROPER ROLE OF THE ASSOCIATION
As you undoubtedly know, the Davis Stirling Act regulates elections. The sweeping new DSA election law (SB 323) that took effect in 2020 was expressly adopted to limit board discretion in how associations conduct elections, and in response to the assertions of its proponents that reform was needed because “…incumbent boards have seized upon this discretion to undermine the democratic function of the elections…”.
Thus, it is important to understand that when the legislature regulates elections it is not because it is concerned about promoting civility, rather it is concerned that incumbent directors (or their agent, the community manager), may put their considerable influence on the scale in favor of preferred candidates.
In a nutshell, the association should be like Switzerland during an election. It must follow the law and the DSA compliant Election Rules and remain neutral as an organization. The association should not be in the business of factchecking or policing campaign communications outside of association channels, such as via mass email blasts sent by candidates or their supporters (using the membership list) or on social media such as Nextdoor or Facebook. Let the candidates and their supporters respond if needed. Specific complaints may also be made by members directly to the social media platform or the moderator of the platform, along with a demand that offending rhetoric is removed as not following the platform guidelines.
For the community manager, an agent of the association, it is especially important to not make any statements favoring one candidate over another, and most importantly in communications sent to the members. As to sitting directors, those running for reelection of course will campaign and promote their own reelection. While other sitting directors have a right as members to publicly endorse or otherwise advocate for a candidate of their choice, consider whether that is a best practice or creates disharmony on the board. At the very least any written campaign advocacy from sitting directors should include a disclaimer that the director is not speaking in their official capacity or for the association, and that association funds were not used to endorse that candidate.
Abraham Lincoln said in his first inaugural address that political strains should not break the “bonds of affection.” While the strains of Lincoln’s era are in no way comparable to the strains created by heated rhetoric in an association election, it is important to remember that members and directors within an association are members of the same community, first and foremost. They can and should be reminded of their common interest and keep their elbows to their sides.
Election Tactics to Consider
While it is not possible to eliminate all heated or offensive rhetoric, civil and respectful campaigning recognizing the shared interests of all members should be encouraged and promoted as a community attribute. A few suggestions to work toward this goal include:
• Ensure you have properly adopted and compliant Election Rules.
• Propose and work toward the adoption of Campaign Guidelines which, while not enforceable operating rules, set forth what the community expects during campaign in terms of respect and civility.
• Adopt a Director Code of Conduct that sets guidelines for sitting directors to follow during elections and which reflects the high ethical standard that is expected from community leaders during elections.
• Consider appointing an Election Committee of trusted and influential members of the community to work with the Inspector of Elections, and draft a charter for the committee that will guide its work in ensuring that the election process complies with the DSA and election rules and promotes ethical and civil tactics.
• Hold more, not less association sponsored candidate forums and similar outreach, providing equal access to all candidates. Knowing such events are upcoming should reduce a member’s impulse to vent on Nextdoor or other platforms.
Dave Feingold, Esq. is a partner in the Marin County law firm of Ragghianti Freitas, LLP, where he is part of the real estate group.
Matthew Haulk, Esq. practices community association law in the San Francisco Bay Area and is a partner in Ragghianti Freitas, LLP.
