THE TEMPLE OF BLAME AND LEGALIZED FRAUD DRESSED UP AS AN "ELECTION" PART II

Donie Vanitzian
Marina del Rey, CA 90295
March 15, 2007

Mr. Brian Hebert
California Law Revision Commission
3200 Fifth Avenue
Sacramento, California, 95817

THE TEMPLE OF BLAME
AND
LEGALIZED FRAUD
DRESSED UP AS AN “ELECTION”
PART II


Dear Mr. Hebert,

The Temple of Blame and Legalized Fraud Dressed Up As An “Election, Part I” erroneously referenced Senate Bill 1029. It should have referenced Senate Bill 61. I apologize for that error.
Unfortunately, there are many more problems with this code section, but they will have to wait for another time. Until then, please add the following items to my letter dated March 1, 2007 requesting repeal of Civil Code §1363.03.

Disqualification and/or Selective Invalidation
of Owner Ballots
It has been reported to me that so-called “Inspectors of Elections” for whatever reason(s) are “disqualifying” ballots based on THEIR interpretation of the law.
With nothing more than the name “inspector,” such “inspectors” are unilaterally deciding whether owner ballots are “qualified” or “disqualified.”

Number of units owned by a single titleholder: The statute does not address the issue of a single titleholder owning more than one unit. The legislature could have easily eliminated problems related to this issue, but were derelict. Presently, if the association has not adopted any rule that restricts the number of ballots to be mailed in each separate envelope, those ballots that are legitimately voted and mailed in a single envelope should not be invalidated, yet that is precisely what is occurring.
Owners of multiple units have reported to me, that their associations and/or the “inspectors” chosen to oversee such voting procedures are selectively disqualifying titleholder ballots. In one case, the so-called “Inspector of Elections” (whatever THAT’S supposed to mean) disqualified two votes of three votes cast by a titleholder who owns three units in one common interest development. That titleholder was entitled to cast—and have counted—one ballot for each unit owned irrespective of the envelope they were mailed in. Instead, the “Inspector” disqualified and discarded (destroyed) two ballots “because the inner envelope contained three ballots.” In actuality, and only for sake of argument, for the invalidation to be legal, all three votes should have been disqualified.

(a) NO ballots should have been destroyed and,
(b) Nothing in Civil Code §1363.03 prevents, nor ipso facto disqualifies, or gives any inspector of said elections the authority to disqualify, a titleholder holding title to more than one property within the same common interest development, from voting all his/her ballots at one time and placing said ballots in one envelope.

In another case, a titleholder owning more than one unit, clearly wrote his name and address and signed it (as indicated in the association’s instructions) on the outer envelope, and clearly wrote that it contained three ballots. Even though the “Inspector” checked the outer envelope against the association’s homeowner list indicating the titleholder is entitled to cast three ballots, the “Inspector” invalidated two votes of the three.
In a case where a titleholder owning two units -- voted his two ballots -- mailed them in the same envelope provided, the “inspector” invalidated both votes because only one envelope was used.
Some “inspectors” are “discarding” the ballots and others are merely “invalidating” the ballots. Civil Code §1363.03 does not define these terms nor does it discuss this situation. The code fails to address the aforementioned problems. This should have been a no-brainer to the legislature and the legislator who was responsible for sponsoring this fiasco.

Long and Incomprehensible Instructions

I am witnessing longer and longer, and yes, even longer, instruction sheets or multiple instruction sheets, accompanying voting procedures distributed to titleholders. One of the many problems with such “instructions” and the rules adopted by associations pursuant to Civil Code §1357.100 is that they are drafted by boards AND consultants or advisors who think they know what they are doing. In the interim thousands of titleholders are being disenfranchised because an advisor thought it would be a “good idea to include” [insert that good idea] in the instructions.
Apparently, those responsible for circulating ballots and/or voting materials will take it upon themselves to insert their own wording, or a sentence, or a paragraph, or what they may call a “clarifying note” into instructions that were NOT part of the language adopted by the owners and/or the board of directors let alone Civil Code §1363.03.
There are many who now believe that the taint on homeowner association elections and fairness in general, is irreparable. The industry’s influence has so corrupted the process that many of us believe it is beyond salvage. When a board of directors announces “it has passed” -- all hope is deflated by those owner who know it “didn’t pass.”

Good Standing, Bad Standing, No Standing
Just Sit Down and Shut Up!

Irrespective of the titleholders’ being in good standing at their associations or not, “inspectors” are unilaterally making the “call” whether owner ballots are “qualified” or “disqualified.”
It apparently no longer matters that the titleholder has a property right, one that vested on purchase of their property. As associations will do anything to divest owners of their property rights, this bogus nonsense written into many association documents consisting of “you are not in good standing so you cannot vote” overrides all statutes.

Open to Anyone’s nterpretation

Perhaps one of the biggest flaws with Civil Code §1363.03 is that it is open to interpretation.
Ballots created and distributed by management companies and/or other third-party vendors and forwarded to me by boards of directors and owners are evidencing a frightening trend. Management companies and other so-called “professionals” are apparently taking it upon themselves to insert their verbiage (i.e, via poetic license) into ballots.
It is also disturbing to find that there is a basic breakdown in communicating meaningful “instructions” to owners. Simple questions, like this one addressed to me from a reader, “HOW do those of us who did not vote by ballot, cast a vote at the annual election by attendance?” One owner forwarded seventeen letters asking that same question to her board over two months time. At the time of this writing, the question was still unanswered.

Creating unilateral contingencies in the balloting process: Too many ballots are wrongfully inserting, then publishing, contingencies into the voting process where no such “contingency” exists in the law and no such contingency exists in the association’s governing documents, or the “rules” adopted by the board. One such ballot that was irresponsibly created by a management company states “you must first check with the person to make sure they want to run for the board.”[1] Such an admonition of “acceptance” is not a statutory requirement, thus that statement functions as an “admonition” which in turn results in the “addition” of a “contingency” into the voting procedure and invalidates the election, let alone the ballot.[2] Another management company took it upon themselves to write on the face of the ballot:

“Write-in candidates, ie, candidates written on the ballots after they are distributed by the Association and nominations from the floor, are discouraged as they do not afford such candidates the same opportunity as those candidates whose names are pre-printed on the ballot, and it complicates the election process at the time of the meeting.”

Aside from the vendor’s arrogance in believing they can simply write what they want, that hyperbole confuses voters and could arguably subject the association to liability. It invalidates the election because it functions as an “admonition” which in turn results in the “addition” of a “contingency” in the balloting process. [3] Incompetent “opinions” injected into the balloting process by third-party vendors contracted by the association NOT to practice law but to provide a “service” in exchange for remuneration invalidates the election process. This interference is costly to the association and subjects the owners to insufferable preaching by paid employees[4] who have nothing to do with protecting the owners’ assets.

Mailed ballot invalidated and superseded by yet another mailing; and another mailing after that
Another problem occurs when ballots that were already circulated, voted, returned to the inspector, and waiting to be counted -- yet just prior to counting those ballots -- all ballots are invalidated.
The statute does not address this problem. In several instances that I have recently been made aware of, the management company or board of directors refused to return the invalidated ballots and it is unclear if those ballots were discarded, and if they were discarded, how so? There are variations on this theme, too lengthy for discussion in this forum, but in need of clear and unequivocal direction by the legislature. If the advisor, management company, or other third-party vendor contracting with the association is the recipient of the returned ballots, those ballots (as it was relayed to me) those entities are keeping, or holding onto those “invalidated” ballots.

Adding candidates
This is another problem that is growing in intensity. In the event the first mailing of ballots was invalid, and a second ballot mailing is necessary to correct an error, I have received communications from dozens of owners showing that advisors, management companies, or other third-party vendors contracting with the association, have taken it upon themselves to add candidate names to a new or corrected-ballot without giving prior notice to all titleholders that there was an extension of time allotted (ie, “created” due to the initial balloting error) to nominate and/or include one’s name on the ballot. Situations like this disenfranchise all owners and those who would have added their name as a candidate had they known that the time had been extended to place a candidate’s name on the ballot. [5]

Envelopes[6]
Without elaborating further, I have received hundreds of complaints and examples regarding the “double envelope” process, the quality or lack there of, regarding said envelopes. The complaints range from mailing-related problems to ballot invalidations as they relate to the envelopes provided by the association or other third-party vendor entity.
In one ballot enclosure executed by a vendor management company employee purporting to some sort of Vice President, the instructions state, “Any unsigned outer envelope will not be counted as it cannot be validated.”
That fabricated statement is deceitful, it is not the law, and without a published “validation” policy, it unilaterally disenfranchises the titleholder.[7] The statute does not state that, nor does it allude to that type of unilateral disqualification, or invalidation. In my discussions with Senator Battin’s office I was told that is not a true statement, the ballot will NOT be invalidated.

Signatures, privacy, identity theft:
Too many ballots are being invalidated or disqualified based on the owner’s “signature.” There are no guidelines in the statute that detail how “signature invalidation” is to occur, and under what circumstances it should occur, if it should occur at all. Owners report that their ballots are being invalidated for no other reason than “someone” said their signature was “suspect.” Yet, the person or entity invalidating ballots using the excuse of “suspect signatures” had nothing to compare the owners’ signatures to.
For obvious reasons, NO TITLEHOLDER wants their signature to be housed at a management company office -- let alone there are no assurances of privacy from such companies. Stockpiling signatures at a third-party vendor’s office where there is, among other things, no control over employees, access to documents, safeguarding of property, are unacceptable.
Predictably, this will mean that each titleholder must notarize their ballot prior to mailing it in. Without notarized ballots, its anyone’s guess whose signature it is.

Incompetence and interference: Third-party vendors are likely costing associations more than they bargained for. For example, in one ballot enclosure executed by a management company executive it states:
“Return the double sealed ballot to the Inspector of Elections by xx/xx/07.”
That statement is false and cannot be complied with for these reasons:

(1) there is NO double sealed BALLOT. The ballot itself cannot be sealed; and
(2) on its face, the aforementioned statement gives ALL titleholders until MIDNIGHT on xx/xx/07 to return their ballots and/or to vote, thus contradicting the governing documents AND what was written in the other enclosures mailed with the ballot that stated the ballots are counted in the open at the annual meeting, and results are announced at that time.

Misrepresentations: Some third-party vendors, including management companies, advisors, consultants, and the like, have injected there own sayings onto the face of the ballots, and/or in accompanying materials that invalidate the election process. One such saying is as follows:

“A quorum of members must return ballots in order for the election to be valid.” [8]


That statement alone invalidates the entire election because:

(a) for a variety of reasons too length for this discussion, it creates a “contingency” for the owner’s “vote”;
(b) assuming arguendo that the statement is accurate, it fails to state the quorum “number” required for the election to be “valid”;
(c) it places an (additional) “instruction” on the document which should not be there without a vote and direction of the board;
(d) that statement (in this instance) “contradicted” other enclosures published by the management company vendor and/or board of directors that accompanied the ballot itself;
(e) it “assumes/presupposes” that the owner cannot or will not utilize a proxy or send a representative in to vote;
(f) the statement predicates a “valid election” on a quorum of returned ballots. This may not be the case in every association. This also does not account for attendance at the meeting for quorum purposes, it does not account for votes and nominations from the floor and in-person voting at the time of said election and/or annual meeting; (this assumes that the annual meeting is also THE meeting where the election of officers will occur), it misstates the facts;
(g) if the ballot does not state on its face, that “this ballot will be used to establish a quorum,” then that statement cannot be made.[9]

Let’s keep recounting until we get the result we want:
Some owners have reported influence from outside entities encouraging if not demanding that the boards recount ballots. Some have reported recounting ballots over three times. Each time the result narrows and by invalidating certain ballots, the slate, or existing board members can keep their seats. In each instance, the competition was eliminated. Coincidence? You decide.

Again, no matter how its sliced, Civil Code §1363.03, in its present form it is incomprehensible and nearly, if not wholly, impossible to comply with in toto.

Very truly yours,




D. Vanitzian
[1] Vanitzian, California Common Interest Developments-Homeowners Guide (Thomson/West 2007).
[2] Vanitzian, California Common Interest Developments-Homeowners Guide (Thomson/West 2007).
[3] Vanitzian, California Common Interest Developments-Homeowners Guide (Thomson/West 2007).
[4] Vanitzian, California Common Interest Developments-Homeowners Guide (Thomson/West 2007).
[5] Vanitzian, California Common Interest Developments-Homeowners Guide (Thomson/West 2007).
[6] Vanitzian, California Common Interest Developments-Homeowners Guide (Thomson/West 2007).
[7] Vanitzian, California Common Interest Developments-Homeowners Guide (Thomson/West 2007).
[8] Vanitzian, California Common Interest Developments-Homeowners Guide (Thomson/West 2007).
[9] Vanitzian, California Common Interest Developments-Homeowners Guide (Thomson/West 2007).