SCLH Attorneys Opinion

Court Holds That as Part of the Balloting and Voting Process, California Community Associations Must Provide Equal Access to Association Media and Common Area for Members to Advocate Their Positions

By Cyrus Koochek, Associate Attorney, Swedelson Gottlieb

Every board of directors for every condo or homeowners association has been there; the board wants to do something that it should be “obvious” that the association needs, such as a needed capital improvement to the common area, or an important amendment to the CC&Rs, but cannot muster up the required amount of homeowner votes to approve this “obvious” need. Whether this failure of approval results from the homeowners’ true opposition to the proposed change or whether it stems from owner apathy, a recent California court decision has made it clear that when the board advocates for votes for the approval of whatever is on the ballot, the board is a candidate. The Court made it clear that if boards are not extremely cautious in how they conduct themselves throughout the voting and elections process, California community associations may be held in violation of the Davis-Stirling Act.

On June 26, 2013, the California Court of Appeal (4th Appellate District) filed its decision in Wittenberg v. Beachwalk Homeowners Association holding that the board of directors of the Beachwalk Homeowners Association violated California Civil Code Sections 1363.03(a)(1) and 1363.03(a)(2), which state that association media (website, newsletters, etc.) and common areas (areas where notices are posted, etc.), respectively, must be equally accessible to all members during a campaign as long as any one member advocating a point of view is provided access to such media or common areas. Based on the court’s interpretation of these Civil Code sections, all boards must be extremely mindful of their actions during an election or voting process.

Frankly, we at Swedelson Gottlieb did not need the Court to tell us these things, but apparently there were some attorneys and board members out there that did not see that when they were advocating a position as part of a balloting process, they needed to give equal access to those that were opposed to the board’s position. Now the law is clear on this issue.

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In Wittenberg, the board in question made repeated efforts to pass an amendment to the association’s CC&Rs. The board, through the association’s website and newsletters, made it clear to all members that it would continue to conduct elections one after another until the vote passed, and that members were “encouraged to vote yes for [the] amendment.” In the end, after the third election on the proposed amendment, the amendment was approved; however, the board’s actions during the first two failed elections were called into question. During those two elections, three different homeowners, whose viewpoints opposed the board’s view, asked to use association media and common area to publish an article, hold a town hall meeting at the clubhouse, and stage a political rally in the common area. All were denied, or not granted access without charge, which is prohibited under the Civil Code.

The association’s attorney acknowledged that the board did not provide the required equal access, but argued that 1) the board is not a “candidate or member” that was advocating a point of view within the meaning of the statute and 2) the violations did not occur during the third campaign, which is the election homeowners were trying to overturn. The court disagreed with the association’s arguments unequivocally.

The court first held that there is no language in the statute differentiating a board of directors from other candidates or members. All board members, pursuant to the association’s governing documents, are required to be members, and as a result, the court found that as long as association media was used, it was irrelevant whether the views of the board were expressed as personal views or collective views. Quite simply, board members are members, and are treated as such unless state statute specifically applies only to board members. The court also found it obvious that encouraging members to pass an amendment, and doing so repeatedly until the amendment passed, rose to the level of advocating a point of view.

Perhaps most noteworthy in this case was the court’s rationale for why the board’s actions from the first two elections could still be used to overturn the third election in which the amendment was finally approved. The court held that the board’s actions were so continuous and connected that all three elections should effectively be considered one extended campaign and election for purposes of the statute. The board sent out newsletters and posted on the association’s website for all of the elections, essentially repeating their stance that all members should vote yes for the

   
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passing of the amendment. According to the court, the board “threatened to, and did, hold multiple elections in short succession until the amendment passed,” and tied the first two elections to the third by warning the members during the third election that the vote already failed twice and must continue to go on. This was enough for the court to consider all three elections, and their respective campaigns, as one. This interpretation should put all boards on notice that if they don’t comply with the governing documents or applicable laws at all times, a board’s past actions can have an impact on subsequent board dealings.

A board’s fiduciary duty is the single most important aspect of its governance of an association. A major part of this duty includes a board’s compliance, on behalf of the association, with governing documents and all applicable law. In Wittenberg, the court effectively held that the board tried to manipulate the objective voting and elections process by trying to influence voters with their advocacy and not allow members with opposing viewpoints to equally access the association media, which undoubtedly has a further reach than anything a member could do on his or her own.

Community  associations  are  often  called  mini-governments  because  of  the similarities in governance and democratic procedures, and because they make and enforce the association’s rules and governing documents. In light of this, laws are enacted to maintain such balance and transparency. The court in Wittenberg has made it clear that permitting the board’s actions would have given the board too much power to advocate for its opinions and would have rewarded the board for denying an equal voice to “the people,” in this case, the other association members. Boards must be very careful in how they approach elections, and they should consult with legal counsel to avoid making mistakes. A board can always feel free to propose changes and conduct its elections, but after this decision, a board can’t say it isn’t on notice of how careful it should be when doing so.

This article was prepared by Cyrus Koochek, a Community Association Attorney at Swedelson Gottlieb. The article was edited by firm Senior Partner David Swedelson.