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Yes, Notice is Required For Cumulative Voting

Q:  Must an HOA member give notice at a meeting before voting begins that he or she intends to cumulate their votes in order for cumulative voting to be allowed on the election ballot?

A: YES. When an HOA’s governing documents allow cumulative voting, there is still a legal requirement for notice even if the governing documents do not explicitly state it. Unfortunately, an apparent conflict between two California statutes [Civ. Code 7615(b) and Civ. Code 5115(e)] has led some HOAs to conclude that actual notice prior to the start of voting (i.e. of a member’s intent to cumulate their votes) is not necessary for cumulative voting to take place.

Section 5115(e) of the California Civil Code provides: “An association shall allow for cumulative voting using the secret ballot procedures provided in this section, if cumulative voting is provided for in the governing documents.” Cal. Civ. Code § 5115(e). Some HOAs look no further than this section to conclude that cumulative voting automatically takes place if it is allowed by an HOA’s governing documents.

HOWEVER, Section 7615(b) of the California Corporation Code allows for cumulative voting only for candidates who have been properly nominated and only when at least one member has given notice of their intent to cumulative their votes.  More specifically, the section provides:

“No member shall be entitled to cumulate votes for a candidate or candidates unless the candidate’s name or candidates’ names have been placed in nomination prior to the voting and the member has given notice at the meeting prior to the voting of the member’s intention to cumulate votes. If any one member has given this notice, all members may cumulate their votes for candidates in nomination.” Cal. Corp. Code § 7615(b).

The first statute does not require notice while the second does. Reconciliation of the two statutes requires application of an important rule of interpretation: specific statutes that conflict with a general statute take precedence over the general statute. Indeed, the Davis-Stirling Act includes a provision that explicitly provides that the Davis-Stirling Act takes precedence over the Corporation Code when there is a conflict between statutes.  Cal. Civ. Code § 5100(e).

Here is an example of the specific taking precedence over the general. The speed limit is 55 MPH. The speed limit for large trucks is 45 MPH. The 55 MPH speed limit is a general statute that applies to all vehicles.  The 45 MPH statute is a specific statute that applies only to large trucks.  See, e.g. Cal. Civ. Code § 1859.

Here, Section 7615(b) is a general statute that applies to all non-profit corporations with members.  Section 5115(e) is a specific statute that applies only to HOAs. If the two statutes were in conflict, Section 5115(e) would control over 7615(b). However, a close examination reveals that Section 5115(e) and 7615(b) are not in conflict. They are not in conflict because because Section 5115(e) is silent regarding member notice. If 5115(e) said “no member notice is required in order for there to be cumulative voting,” then it would knock out the notice requirement of 7615(b). Since 5115(e) does no such thing, the notice requirement of 7615(b) still stands.

It is the awkward wording of Section 5115(e) that causes the confusion. A clearer way to express Section 5115(e) would be: “Cumulative voting must take place by secret ballot if it is allowed by an HOA’s governing documents.”

Conclusions

  1. HOAs and their members can only use cumulative voting if notice is given at the meeting before voting starts. This notice requirement cannot be waived by including a provision in the election rules that states, for example, “Notice is hereby given that cumulative voting is allowed.”
  2. Cumulative voting can only be used for candidates who were nominated prior to the start of voting.  This, there is no cumulative voting for write-in candidates or nominations from the floor.
  3. The secret ballot system used for HOA board elections must be used when cumulative voting is allowed.

References

California Civil Code § 1859

California Civil Code § 5115

California Civil Code § 5100

California Corporation Code § 7615

City and County of San Francisco v. County of San Mateo (1995) 10 Cal.4th 554, 563, 41 Cal.Rptr.2d 888, 896 P.2d 181

Rev. July 17, 2021

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