What is An Inspector of Elections?
Pro Elections LLC is an independent 3rd party as required by the Davis-Stirling Act.
According to the Davis-Stirling Act, Inspectors of Elections must be independent third parties, which means they cannot be “a person, business entity, or subdivision of a business entity who is currently employed or under contract to the association.” HOA management companies and their employees may not serve as Inspectors of Elections for the HOAs they manage.
Section 5110 of the Civil Code lays out the roles and responsibilities of Inspectors of Elections as follows:
(a) The association shall select an independent third party or parties as an inspector of elections. The number of inspectors of elections shall be one or three.
(b) For the purposes of this section, an independent third party includes, but is not limited to, a volunteer poll worker with the county registrar of voters, a licensee of the California Board of Accountancy, or a notary public. An independent third party may be a member, but may not be a director or a candidate for director or be related to a director or to a candidate for director. An independent third party may not be a person, business entity, or subdivision of a business entity who is currently employed or under contract to the association for any compensable services other than serving as an inspector of elections.
(c) The inspector or inspectors of elections shall do all of the following:
(1) Determine the number of memberships entitled to vote and the voting power of each.
(2) Determine the authenticity, validity, and effect of proxies, if any.
(3) Receive ballots.
(4) Hear and determine all challenges and questions in any way arising out of or in connection with the right to vote.
(5) Count and tabulate all votes.
(6) Determine when the polls shall close, consistent with the governing documents.
(7) Determine the tabulated results of the election.
(8) Perform any acts as may be proper to conduct the election with fairness to all members in accordance with this article, the Corporations Code, and all applicable rules of the association regarding the conduct of the election that are not in conflict with this article.
(d) An inspector of elections shall perform all duties impartially, in good faith, to the best of the inspector of election’s ability, as expeditiously as is practical, and in a manner that protects the interest of all members of the association. If there are three inspectors of elections, the decision or act of a majority shall be effective in all respects as the decision or act of all. Any report made by the inspector or inspectors of elections is prima facie evidence of the facts stated in the report.
From https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB323
Pro Elections CEO Abigail Padou was invited to be the featured speaker at an ECHO educational event, “HOA Elections & Understanding the Role of an Inspector of Elections.”
What Is the Meaning of “Fairness to All Members”?
Civil Code Section 5110 lists the duties of an Inspector of Elections (IOE), ending with the following catchall phrase in Section 5110(c)(8): the IOE shall “Perform any acts as may be proper to conduct the election with fairness to all members…”
But what does the phrase “fairness to all members” actually mean? There is a risk in overinterpreting the phrase so as to confer more powers on IOEs than they actually have. At Pro Elections, we interpret the phrase with the following interpretive canons in mind.
Ejusdem Generis (of the same kind) is shorthand for an interpretive canon that directs or encourages a court to treat a catchall phrase as including only items that are similar – sometimes very similar – to other specific items in the same list.
For example, a court considering a list of “cars, trucks, tractors, motorcycles or other motorized vehicles” would treat the “other motorized vehicles” phrase as including only land vehicles and not airplanes because all of the specific items in the list travel only on land.
The foregoing is consistent with another interpretive canon: Noscitur a sociis (associated words bear on each others’ meaning).
In both canons, the catchall or general word or phrase is construed to include only items that are similar to the other specific items in the list.
Thus, if it is suggested that an IOE should perform a certain action based on “fairness to all members,” the IOE must compare the requested action with the other duties listed in Section 5110(c)(1)-(7). If the requested action does not resemble the other listed duties of an IOE, then the IOE lacks the authority to implement the requested action.
