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TKPOA Election Rules, Voting Procedures and Director Qualifications
By Kirk Wooldridge, TKPOA General Manager
AS OF JANUARY 1ST, 2020, Senate Bill 323 went into effect that provides an extensive overhaul of Homeowner Association election procedures. Our current voting and election rules that were adopted by the Board of Directors of Tahoe Keys Property Owners Association (TKPOA) on May 22nd, 2015 complied with the requirements of the Civil Code, and a much needed update by Steve Weil – TKPOA Legal Counsel at the time – Berding & Weil, LLP
Based on the 2020 Senate Bill 323 (SB 323), there are numerous changes required to our voting and election rules, and updates that our current TKPOA Legal Counsel Matt Ober – Richardson – Ober- DeNichilo LLP has provided a complete update of these rules for Board adoption. SB 323 amends Civil Code Sections 5100, 5105, 5110, 5115, 5125, 5145, and 5200, and adds Section 5910.1 relating to elections, voting and candidate qualifications.
Based on the 2020 Senate Bill 323 (SB 323)
there are numerous changes required to our
voting and election rules, and updates...
At the February 15th, 2020 Board of Directors – Regular Open Meeting the Board of Director’s proposed Board Action to approve the revised TKPOA Election Rules, Voting Procedures and Director Qualifications for a 28 Day Membership Rule Change Review Period. Due to the size of the this proposed rule change; a mailing will need to be sent to each TKPOA property owner, the complete rule change is 25 pages. For those TKPOA property owners that have agreed to Electronic Communication Authorization, by signing the “Request for Annual Notice of Address, Secondary Address, Representative, Rental Status, and Consent for Electronic Delivery” (Form 4041) [Corporations Code §20], the TKPOA will be mailing the Notice of Rule change and emailing this proposed rule change. The adoption of the proposed TKPOA Election Rules, Voting Procedures and Director Qualifications will be scheduled for the April 18th, 2020 Board of Directors – Regular Open Board Meeting at 2:00 p.m.
The following are the highlights of the significant changes:
In the past the TKPOA has held hearings to suspend the voting rights of members delinquent in their assessments, and other HOAs have bylaws barring such homeowners from voting. The new Civil Code §5105(g) (1), however, requires HOAs to give ballots to all association members. The Board can no longer suspend members voting rights.
The new Civil Code §5105(c) allows associations in bylaws or election rules to disqualify members as “Director Candidate” if the member: Is delinquent in assessments (without a payment plan in place); has not been a member for at least a year; is co-owner with another director; or has a felony conviction which would harm the HOA’s ability to obtain fidelity (dishonesty) insurance.
Term limits for Board of Directors have been removed.
One of the strangest parts of the new law is the new Civil Code §5105(e), requiring that a candidate must be offered Internal Dispute Resolution (IDR) [Civil Code §5900] before they can be disqualified.
The greatest challenge for all HOAs is that the law extends the election cycle by at least 60 more days. Civil Code §5110 has long required ballots to be sent at least 30 days before counting of ballots. The new Civil Code §5115(b) requires the HOA announce the upcoming election and nomination procedure at least 30 days before the ballots are distributed, and Civil Code §5115(a) requires that a call for nominations must have a deadline of at least 30 days. This means that, if everything is done on the shortest time frame, elections will take 90 days.
Although some HOAs allowed managers to serve as the Inspector of Election, under the new Civil Code §5110(b) this is prohibited.
For Inspector of Elections an independent third party is required to be selected by the association as the inspector of elections and prohibits a person, business entity, or subdivision of a business entity that is employed or under contract to the association for any compensable services from being an independent third party unless otherwise expressly authorized by the rules of the association.
For the 2020–2022 Board of Directors Election, there are four board positions up for election. The following Board Member terms end in 2020: Robert Meyers – Vice President, Jim Siegfried - Treasurer, Dennis Daniel and Michael Keller.
Based on our current review of the proposed TKPOA Election Rules, Voting Procedures and Director Qualifications, and SB 323 requirements the Director Election schedule will change for 2020. The following is the proposed timeline for the Annual Board of Director Election:
A “Director Election” Board of Directors meeting will be held on Saturday, September 5th, 2020 at 9:00 a.m. at the TKPOA Pavilion located at 356 Ala Wai Blvd, South Lake Tahoe CA. The balloting period for this election will close at 9:05 a.m. on Saturday, September 5th, 2020. If TKPOA property owners elect to return their ballot at the Board Meeting; it must be turned into the Inspector of Elections no later than 9:05 a.m. on Saturday, September 5th, 2020. If you elect to return this ballot in person at the Pavilion Office, the Secret Ballot must be inserted into the ballot box prior to 3:00 p.m. on Friday, September 4th, 2020. If TKPOA property owners elect to return this Secret Ballot by mail, the ballot must be received no later than 3:00 p.m. on Thursday, September 3rd, 2020.
The 57th Annual Membership Meeting will be held as planned on Sunday, September 6th, 2020 at 9:00 a.m. at the TKPOA Pavilion.
For any questions or comments on the proposed TKPOA Election Rules, Voting Procedures and Director Qualifications Rules, or the 57th Annual Membership Meeting contact Angela LaTella, Administrative Assistant at (530) 542-6444, ext. 223 or email at ALatella@ tahoekeyspoa.org.
TAHOE KEYS PROPERTY OWNERS ASSOCIATION ANNUAL BOARD OF DIRECTOR ELECTION TIMELINE
GENERAL NOTICE FOR SELF NOMINATION DEADLINE
SELF NOMINATION DEADLINE
GENERAL NOTICE OF MAILING ADDRESS, MEETING LOCATION, LIST OF CANDIDATES
SECRET BALLOT MAILING DATE
SECRET BALLOT DEADLINE FOR MAILING (RECEIVED BY INSPECTOR OF ELECTIONS)
April 24th, 2020
4:00 p.m. Friday May 29th, 2020
June 12th, 2020
July 17th, 2020
3:00 p.m. Thursday September 3rd, 2020
THE TKPOA RULES AND THE RULE CHANGE PROCESS CONTINUED FROM PAGE 4
and preferences. The standards have been carefully developed to reflect a balance between individual rights and the good of the entire association—that is, continuing to maintain and improve property values.
These guidelines maintain architectural standards and provide a basis for treating all property owners fairly and reasonably. Written guidelines allow you and the Architectural Control Committee (ACC) to work from the same criteria, and are published as the Architectural Control Rules (ACR), TKPOA Bylaws and CC&R’s.
Sometimes architectural rules and requirements can be complex. The ACR’s rules show you exactly what is required so you can comply with the community’s standards. The ACC wants the paperwork to be as simple as possible for everyone. The ACR rules take the guesswork out of your application and their decision making.
The ACR rules provide criteria for the current ACC to make appropriate decisions, and for future committees’ to make decisions that are consistent. Otherwise, the application approved today may be found unacceptable by future committee members when construction is completed.
The ACR rules clarify the association’s authority in this area. California State statues and our Governing Documents give the TKPOA a legal right to enact and enforce design standards. The ACR rules spell this out so everyone understands they must comply even if they don’t agree. The Association Operating Rules are any regulation adopted by the Board of Directors of a condominium or homeowners association that applies to the management and operation of the association or the conduct of its business and affairs. Civil Code §4340. This includes pets, parking, use of the common areas, member discipline, architectural standards, election procedures, any schedule of monetary penalties, etc. Civil Code §4355(a). Excluded are decisions relating to common area maintenance, a specific matter (as opposed to a general policy), assessment amounts, a non-discretionary rule change required by law, or a rule that repeats existing law or the association’s bylaws, CC&Rs or articles of incorporation. Civil Code §4355(b). Enforceability of rules, as provided for in Civil Code §4350, an operating rule is enforceable if: (1) it is in writing, (2) it is within the board’s authority, (3) it is consistent with governing law and the associations governing documents, (4) it is adopted in good faith, and reasonable.
The Rules Change Process There is a specific process that must be followed for rule changes. Any property owners of the Association in good standing or Association management may submit a proposed rule change. First, the section/subsection of the existing rule must be documented verbatim. Then any additions to the rule should be inserted using bolded underlined text. Any deletions should be shown using strikethrough . A Purpose and Effect statement must also be included with the proposed change and should explain the purpose for the change and the effect the change will have. Once drafted, the proposed change goes through the following process:
For Association Rules 1. Proposed changes are first submitted to the TKPOA Staff and Board of Directors. The TKPOA Staff will review the proposed rule change(s) and check it/them for proper format and ensure that it/they are not in conflict with any other governing documents, California Civil Code, ordinances or laws and to determine next steps, such as ACC or Legal Counsel Review. The proposed rule change is then placed on the next TKPOA Board of Directors Regular Meeting agenda upon the Board Presidents approval. The member submitting the proposed change should attend the meeting. All TKPOA members in good standing are welcome to attend these meetings. 2. If the Board of Directors approves the rule changes, it is then approved to be published in the Keys Breeze or sent as a mailing to all members for the required 28 day review period. 3. Requests for rule changes can be emailed to the TKPOA Board Administrative Assistant, Angela LaTella, ALaTella@ tahoekeyspoa.org or they can be dropped off at the TKPOA Pavilion Office. Requests should be submitted at least ten days prior to the next scheduled Board meeting date.
Notice of Proposed Change. Before adopting or amending an operating rule or changing a fine schedule, the Board must “provide written notice of a proposed rule change to the members at least 28 [As of January 1st, 2019 this has changed from 30 days] before making the rule change.” The notice must include the text of the proposed rule change and a description of its purpose and effect. Notice is not required if the board determines that an immediate rule change is necessary to address an imminent threat to public health or safety or imminent risk of substantial economic loss to the association. Civil Code §4360(a).
Method of Notice. The method of providing notice of a rule change is described in Civil Code §4360 as the methods approved by Civil Code §4040, §4045 and §4050. TKPOA gives notice to the TKPOA member of proposed rule changes by publication in a TKPOA Keys Breeze monthly magazine that is mailed to all members of the association or through a direct mailing. The Keys Breeze is the official Monthly Publication of the Tahoe Keys Property Owners Association. The Keys Breeze magazine is also available via our TKPOA website: www. TKPOA.com. (Also on the TKPOA website is additional information on the ACC Rules, CC&Rs, Operating Rules, and Bylaws change process)
It is during this 28 day time period once the Notice of Proposed change is posted that the TKPOA Board of Directors would like to hear TKPOA members’ questions or concerns on the proposed rule change through attending regular monthly TKPOA Board meetings, emails and phone calls, attending the corresponding TKPOA Committee Meetings that the rule change may have originated with, or through contacting the TKPOA Administrative Assistant.
4. After the 28 day review period the proposed change will go back to the Board for approval to be adopted. Any member feedback that has been provided during the review period is considered by the Board before a decision is made. 5. If the Board approves the proposed change, it is published in The Keys Breeze, or sent as a member mailing a second time as a notification to the membership that the rule has been changed along with its effective date.
Notice of Adoption. Within 15 days of voting on the rules, the board must notify the membership of the results of the vote. Civil Code §4360. Once adopted the new rule or rule change is added to the Association Operating Rules/”Governing Documents” and is enforceable. The TKPOA Operating Rules and Governing Documents are enforceable by the TKPOA Board of Directors through the TKPOA member discipline process, suspension of privileges, fines, and in some cases El Dorado County Ordinances and Codes. The TKPOA Board of Directors can approve Emergency Rule Changes under the Davis Stirling Act - Civil Code. If the board determines that an immediate rule change is required to address an imminent threat to public health or safety, or an imminent risk of substantial economic loss to the association, it may make an emergency rule change and no 28-day noticed waiting period is required. An emergency rule change is effective for 120 days, unless the rule change provides for a shorter effective period. Civil Code §4360. Any TKPOA member can propose a rule change or change to our Governing Documents, which include the Association Rules, the Bylaws, CC&R’s and the Architectural Control Committee (ACC) rules.
Once the Emergency Rule has been approved it then follows the Operating Rules process for adoption as a permanent rule change of the TKPOA Association Rules. TKPOA Association Rules are operating rules that are defined by California’s Davis-Stirling Act.
Based on ongoing updating and adding to our rules, the TKPOA Board of Directors, Architectural Control Committee (ACC) and TKPOA Community members are all looking to improve the Tahoe Keys for all of its Property Owners. Not only to improve safety, but to maintain costs of operating the Association as well as protect your property values. If you need a copy of the current TKPOA Association Operating Rules and Governing Documents they can be found on the TKPOA website: www.TKPOA.com, or stop by the TKPOA Pavilion Office: Monday through Sunday 8:30 a.m.–4:30 p.m.
www.TKPOA.com
