Political advocacy: A fine line for board members

Date Published : May-18-2023

Written By : Kim Brown

Most board members campaign for a seat because they are passionate about making positive changes and improvements that will benefit the community as a whole. After all, not just anyone will volunteer their time and energy for an entire election term.

   

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However, not all members will support the views and ideas presented by the board. Different views and priorities are guaranteed when you bring a group of people together, and there is nothing wrong with this. But sometimes, those differences can create discomfort between the board and non-board members.

Just how hard can a board advocate for something it wants? What is considered reasonable? What constitutes as “crossing the line?” Read on to find out more.

   

Table of contents

   

What is political advocacy?

Political advocacy is an act of supporting a change or the creation of a solution. Non-profit companies, health organizations, and grassroots groups often participate in advocacy campaigns to encourage politicians to make changes, or motivate members of the public to put pressure on those who have the power to amend rules and policies.

People advocate for issues such as gender equality, climate change, education, poverty and animal rights.

   

Examples of advocacy

When participating in political advocacy, people have used several different avenues to get their messages across. Some methods include:

  • Sending emails and letters/making phone calls to reach elected officials
  • Creating social media pages to educate interested parties about causes
  • Speaking with citizens and urging them to contact policy makers for the purpose of proposing, supporting, or opposing legislation
  • Wearing specific clothes or colors to an organized event/protest  
  • Circulating petitions

   

How much advocating is appropriate for condo/HOA boards?

Boards are allowed to advocate for or against community matters. Individual directors can speak to other members, write letters, send emails, and even distribute flyers advocating their position – provided the CC&Rs and statutes don’t forbid these types of activities.

Generally speaking, boards can campaign for or against a special assessment or amendment to governing documents.

However, boards cannot tell members how to vote.

   

A real-life example of advocacy gone too far

Two members of a California HOA successfully won a lawsuit that they brought against their association. The matter involved a board that wanted to amend its bylaws, and pushed too hard to get “yes” votes from owners.

The conflict stemmed from paragraph nine of the association’s Covenants, Conditions and Restrictions (CC&Rs), which stated, “no alterations, additions, or improvements, in connection with the common areas of the PRD [Planned Residential Development] shall be made at a cost of more than one thousand dollars ($1,000) without the approval of at least two-thirds (2/3) of the voting owners …”

In October of 2010, plaintiffs sued the association, claiming it had removed one pool, and was prepared to remove two more, without obtaining the two-thirds vote required by paragraph nine of the CC&Rs. In November of 2010, the court granted a preliminary injunction preventing the removal of any more pools without obtaining the two-thirds vote required under paragraph nine.

But instead of trying to get support from members, the board organized multiple elections so they could gain the authority they needed to amend paragraph nine of the CC&Rs to increase the dollar threshold for requiring a vote, and to reduce the number of votes required to approve expenditures.

The first vote was scheduled for December 2010. In a cover letter sent to owners, the board wrote, “As long as this subsection of the CC&Rs remains in force, there will be disputes about what constitutes an alteration or an improvement. Additionally, obtaining two-thirds voter approval of every project over $1000 will gridlock our operations and drive up our costs through constant ballots and legal expenses.” A more flexible amendment was proposed that would give the board more freedom to move forward with projects and maintenance. 

   

Boards can’t actively prevent opposing viewpoints from being shared

A homeowner wanted to rent space (generally free) in the shared clubhouse to host a town hall where members who did not agree with the proposed amendment could talk. The request was rejected. The manager told the owner that the board would require a $90 fee to host the event. The owner complied, but didn’t feel this was right.

The board did not get the votes it needed to change the CC&Rs. So it organized another vote for April 2011.

   

Boards cannot use community websites, bulletin boards or newsletters to promote a viewpoint or stance if other viewpoints are not allowed to be published on these platforms 

The board used a monthly community newsletter to promote their case to owners. The board listed several consequences, including the lawsuit regarding the pools, that members would suffer if owners did not vote “yes.”

Furthermore, the board said it would continue holding elections until the amendment passed. The article concluded with an appeal to the members to vote yes on the amendment: “Vote YES on the proposed 8th amendment to our CCRs so we can put our money to use on physically improving Beachwalk.”

Non-board members were not invited to provide opposing viewpoints in the newsletter. An owner opposed to the amendment asked to write a response to the board’s article for the March 2011 issue of the newsletter. The board refused the request.

The newsletter was posted on a glass-enclosed community bulletin board, controlled by the board. The community website, also maintained by the board, was updated with a message encouraging owners to vote “yes.”

California has a law that requires equal access of “association media” to be granted to members. Civil Code § 5105 states that “if any candidate or member advocating a point of view is provided access to association media, newsletters, or internet websites during a campaign, for purposes that are reasonably related to that election, equal access shall be provided to all candidates and members advocating a point of view, including those not endorsed by the board, for purposes that are reasonably related to the election.” The association can’t edit or redact any statements, but may include a disclaimer specifying that the candidate or member, and not the association, is responsible for that content.

   

Holding three elections for the same issue may be deemed excessive

Despite the board’s efforts, it still did not receive enough support from members to amend the bylaws. It scheduled yet another election for August 2011. Similar messaging was delivered to owners before this third election, with a warning that the board will continue to organize elections until it got the support it needed, and each election would cost the association roughly $5,000.

The board did not get enough ballots by the deadline, so it extended voting by one week. There were finally enough “yes” votes to move forward with the amendment. The association petitioned the court to amend the CC&Rs, and afterward, the two owners filed the underlying complaint to invalidate the results of the August 2011 election. 

   

Findings

A trial court rendered judgment in favor of the board, however, a court of appeal reversed the decision.

While the association did not deny violating multiple rules, it argued that its actions are irrelevant because they occurred in connection with the December 2010 and April 2011 elections, not the August 2011 election, which was the election the plaintiffs were challenging.

As a practical matter, most campaigns correspond to a single election, but in this case, it was determined that the campaign lasted from December 2010 up until August 2011. This case was considered unique because the board assured members that it would continue to hold elections until the amendment passed.

   

It’s okay to push for amendments, but elections are more challenging

The case published in the previous section is an extreme example of board members advocating unfairly for something they believe will ultimately help the community. In most cases, boards can advocate, within reason, for causes they support, provided CC&Rs and local/federal laws don’t place prohibitions on advocacy. 

Legal experts agree that it is okay to explain to owners why a proposed amendment is a good idea. Why would members advocate for something they don’t support?! The key here is to avoid telling members how to vote. Similarly, boards cannot abuse their power to prevent members with opposing views from expressing them.

When it comes to elections, rules regarding political advocacy may be more restrictive. Boards should be more cautious about influencing members.

In Florida, for example, the condo board of directors must be elected by the process prescribed in Chapter 718, Florida Statutes, and Rule 61B-23.0021, Florida Administrative Code, unless the association has 10 or fewer units and has adopted an alternate election procedure in its bylaws.

  • Nominating committees are prohibited by statute
  • Voting ballots must list all eligible candidates in alphabetical order, by last name, and must not indicate whether any of the candidates are incumbents
  • No write-in candidates are permitted

If in doubt about what is and is not appropriate, err on the side of caution and consult with the property manager or a legal professional before you advocate for a candidate.

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