Q I have a couple of questions about the events that took place prior to and at our board election meeting in April 2015.
A letter was sent out from the management company prior to the meeting with the date and the time. It said that a list of candidates would be presented at the meeting and if anyone else wanted to run they could announce that at the meeting. A proxy was included with the letter and it said that if an owner couldn’t be present, then they could assign someone to vote for them and send to the management company or to a board member.
After the management company letter was sent out, one board member and two non-board members sent a letter out to some owners that said they were running for the board; they trashed an upcoming balcony project by saying it was not financed properly and asked for people to assign their proxy to the one board member in the letter.
At the board election meeting, the one board member who was included in the above letter told everyone that each person had to vote for the three (3) open positions (five (5) people ran for the three (3) board positions). Meaning that even if someone didn't want to vote for a candidate they were basically forced to vote for three people. There is nothing in our association bylaws that indicate elections should be held this way.
It does say in the Illinois Condominium Property Act (ICPA) and our bylaws that if the board chooses to disseminate information about the meeting and candidates that all candidate information should be included. Many of us believe the letter that was sent out by the one board member (and two non-members), thereby breaking the Illinois condo act and our bylaws, and we do not feel that being told at the election meeting that we had to vote for three people (for the three positions) was appropriate. Do we have any recourse after the fact?
—Perturbed in Palatine
A “On the facts stated above, it is unclear if the board member, who sent out the letter and who apparently advised the owners of how to vote, was speaking for himself as an owner, or was purporting to be speaking for the board,” says Attorney Mark R. Rosenbaum, a principal of the Chicago-based law firm of Fischel & Kahn, Ltd.
“Thus, if the letter that was sent out simply listed the 3 unit owners (one of whom happened to be a board member but whose being on the board is not mentioned in the letter), then it would appear to me that the board member, in his capacity as a unit owner, was addressing his fellow owners and asking them for political support at the owners’ meeting.
“Even a board member has a right to speak, as a unit owner, to other unit owners on the issue of who should be elected to the board, such action is not in violation of the dissemination law, as it is the private act of a unit owner, not the board and not even by the owner as a board member.
“If the letter specifically identified the owner as a board member, and was written in a way that would leave a reasonable impression that the board member was speaking on behalf of the board that would be much more troublesome.
“As to the events at the owners’ meeting where the election was held: The mere fact that a single board member told other owners of the mechanics of voting doesn’t make it the act of the board. Owners could certainly have asked for a clarification from the chair of the meeting, or from the managing agent before casting any votes.
“But assuming that the board member, who announced the voting rule either was the chair of the meeting, or that his announcement was made openly and not corrected by the president or the managing agent (and assuming the association’s attorney was not present to clarify matters), then an announcement that each owner voting was required to vote for 3 directors is clearly incorrect. It is possible that what was said was that owners can vote for up to three directors but not more, and it was understood to mean that an owner had to vote for 3 directors, but on the facts below that would not seem to have happened.
“Assuming the facts are as stated, it is likely not a violation of the Condo Act or of the Declaration or the bylaws to have made the statement on voting, since nothing in the act speaks to the issue, and in my experience, it is unlikely that anything in the declaration or bylaws speaks to the issue. But it is nonetheless almost certainly an incorrect statement of voting rights. And if the declaration or bylaws give the owners the right to cumulative voting for directors (vs. non-cumulative), the effect of “requiring” voting for 3 directors is to materially dilute cumulative voting rights. Even if only non-cumulative voting is required, requiring a vote for three directors would have some adverse effect on voting rights.
“Depending on the actual facts, owners could request the board to hold a new election. That request, however, may well be rejected. Or if enough owners are on the side of the questioner below, an owners’ meeting to vote on removal of one or more of the directors from office could be called. Successful removal of one or more directors should result in a new election to fill the then-vacated directorship, this time with proper voting procedures followed.
“The declaration and/or bylaws should contain procedures for such a removal meeting. Alternatively, the owners could file a lawsuit for injunctive relief to overturn the election, but such suits are very expensive and so are very rare.”