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CCOC Case Summary

#42-10, Johnson v. Highland Manor HOA (August 18, 2011) (Panel: Shontz, Brandes, Kali)

 

The homeowner alleged that the president of the board of directors took unfair advantage of his superior knowledge of the board's action setting a date for the HOA's special election by soliciting proxy ballots before the homeowner even learned of the election date.  The homeowner was an unsuccessful candidate for the board.

           

The hearing panel first found that the Commission had jurisdiction over this dispute even though the action complained of was that of one board member acting on his own.  The proxy ballots were accepted at the special election, and this did constitute an official action by the board.  In addition there were other actions by the board which did not fully comply with its governing documents and with County law.

 

The hearing panel found that the HOAs rules for annual elections did not apply to special elections called to fill a vacancy on the board after the two sitting board members could not agree on whom to appoint to fill the vacancy.  The board failed to list the known candidates in alphabetical order, as required by the County Code when it announced the election but the panel concluded this error was harmless because the ballots did list the candidates in alphabetical order and did distribute the homeowner's resume which showed him to be qualified for the position.

 

On the main issue, the panel upheld the HOA.  The facts show that after the president made his direct solicitation to the members for proxy ballots, the secretary contacted all the members to say that the rules required all proxies to be given to her, she included a different set of proxy ballots as well as the candidates' resumes.  Thus there was a second round of proxy ballot solicitation..  In addition any member who gave a proxy ballot could revoke it if he chose.  None of the materials distributed by either board member endorsed either of the two candidates for the vacant directorship.  The panel concluded that the premature solicitation was harmless because the members were given more than one opportunity to file proxy ballots and to revoke any proxies they may have given originally.