Q: For well over a year, a homeowner in our association continues to disrupt meetings by declaring that the 2007 election of the executive board members was illegal. His claim is “because a board member collected the homeowners’ returned sealed envelopes that contained the sealed ballot envelopes, the act constitutes a violation of the subject NRS secret ballot law.” The board member in question was not running for office and his name did not appear on the ballot. He was assigned the task because he lives in close proximity to our U.S. mail delivery box and he had a key. He did not have access to the secret I.D. number code that was assigned to the return envelopes. The sealed envelopes were collected and subsequently hand carried to the duly appointed election committee on or before the homeowners’ meeting. The return envelopes were then opened during the meeting — the sealed ballot envelopes were removed, opened and counted.
The subject NRS law reads “the incumbent members of the executive board and each person whose name is placed on the ballot as a candidate for a member of the executive board may not possess, be given access to or participate in opening or counting of the secret written ballots that are returned to the association before those secret written ballots have been opened and counted at a meeting of the association.”
The objecting homeowner continues to argue that the law says no member of the executive committee may have access to the envelopes for any reason or at any time prior to the vote count. We continue to interpret the law to say that no member of the board whose name will appear on the ballot as a candidate and each other person whose name is placed on the ballot as a candidate may not possess the ballots. It will be greatly appreciated if your kind office would respond.
A: The NRS law in question is NRS 116.31034 subsection 8f. The first sentence is divided into two parts — the first part of the law states that the incumbent members of the executive committee” and the second part states “and each person whose name is placed on the ballot as a candidate for a member of the executive board “may not possess, be given access to or participate in the opening or counting of the secret ballots…”
The words, “incumbent members” means the current board of directors. The use of the conjunction “and” in the law includes a second group of people, the persons whose names are placed on the ballot. The complaining homeowner is correct in his interpretation of the law.
No board member is to have possession of the election envelopes.
Here is a little history behind the law. Prior to the law, many boards of directors would knock on doors with either proxies or ballots and ask homeowners to support their candidates of choice. Often the homeowners would either sign their proxies or vote on the ballots and then give them back to the directors, who would subsequently bring the proxies or ballots to the meetings.
For those owners who were nonresidents of the community, the board would mail them proxies, listing the board or a specific director as a proxy holder. The issue of possession, the issue of proxies and the issue of the election process came before the legislature. Significant changes were made as to the election process and the issuing of proxies. In addition, this section of the law was passed to prevent the board from having an unfair advantage in securing the votes of the homeowners. Obviously, it would prevent any tampering of the ballots by the directors since they would not be allowed to possess the ballots in the first place.
History and the law support the homeowner’s interpretation. The board should hold new elections and the elected 2007 directors be given the opportunity to place their names on the ballots once more along with any other homeowner who wishes to run for the board in this special election.
Barbara Holland, certified property manager, broker and supervisory certified association manager, is president and owner of H&L Realty and Management Co. She is a member of the Institute of Real Estate Management. Questions may be sent to Association Q. & A., P.O. Box 7440, Las Vegas, NV 89125. Her fax number is 385-3759. Questions may be shortened and are subject to editing.