Real Estate & Property Law

May a Board Endorse Candidates in an HOA Election?

I get lots of questions about HOA elections. Here's one:

"We have an election in process. Our Board president sent a mailing in which is endorsing 3 candidates of 12 nominees. Is there a law, civil perhaps, that prohibits an active Board members from doing so?"

I don't know the regulations in other states but in California, there is a law that has some guidance related to endorsements by the Board, but not individual board members. However, there are some distinctions that escape the majority of people. Here is the law:

1363.04. CAMPAIGN FUNDING. (Section operative July 1, 2006)

(b) For the purposes of this section "campaign purposes" include, but are not limited to, the following:
(1) Expressly advocating the election or defeat or any candidate that is on the association election ballot.
(2) Including the photograph or prominently featuring the name of any candidate on a communication from the association or its board, excepting the ballot and ballot materials, within 30 days of an election, provided that this is not a campaign purpose if the communication is one for which subdivision (a) of Section 1363.03 requires that equal access be provided to another candidate or advocate.

The key is that if the HOA or Condo Board is going to offer any candidate the opportunity to present information to the members in any publication or through use of the facilities, it needs to offer the same opportunity to all of the candidates. The Board may not endorse any candidate or give any an advantage.

As for using the HOA mailing list to send out letters, every member of a California HOA has the right to ask for a mailing list of members. If the Board withholds the list from one member but allows another to have it, such as the Board President, and does not offer equal opportunity for other members to have a communication sent out, that would be considered unfair under the law.

However, that does not mean that individual directors are forbidden from endorsing candidates. They can, but their communications to others in the community whether oral, written, electronic or otherwise, must avoid the appearance that the endorsement is coming from the Board. They can spend their own funds to promote others. I do not believe that use of their title in their communications if an officer will get them or the Board into trouble but favors given by the Board or failure to make an appropriate distinction could.

As a cavaet, some HOAs and Condo Associations have passed rules limiting what anyone can do in an election. I have seen such stringent rules as prohibitions against meeting and talking politics when an election is ongoing with anyone else in the development while in the common area or hosting home parties to support candidates. A bit extreme in my view. I understand that some practitioners or boards would like to take steps to prevent elections from getting out of control, especially when they have had bad experiences, but trying to stifle participation in elections altogether may have one of two effects: (1) creating even more unrest, or (2) engendering apathetic behavior.

Full post as published by California Condo & HOA Law on September 26, 2009 (boomark / email).