Note: Last week I talked about some of the controversial provisions of Assembly Bill 34. This week, I would like to address another much-discussed proposal: the creation of a voting monitor.
The proposed Assembly Bill 34 would allow the Nevada Real Estate Division to certify a voting monitor to administer and supervise homeowner votes. The administrator would adopt regulations to establish practice standards and certification qualifications for voting monitors.
The law would let homeowner associations hire a voting monitor if requested by the association’s president, by a majority of board members or by at least 10 percent of the association’s voting members. This monitor could be involved in any HOA member vote. The law would require associations to solicit bids from at least three voting monitors and hold a board meeting to select one. (There appears to be a technical error in the way the proposed law was written, as the requirement for the bidding process was specifically tied in with the petition from the unit owners to require a voting monitor). The voting monitor may not be a board member, association officer or community manager.
Once chosen, the voting monitor would obtain names and addresses of homeowners who are entitled to vote, compile and deliver ballots and materials for the vote, and collect and record return ballots. The proposed law does not require monitors to open and count ballots in an open board meeting when the ballots are not “secret ballots.”
If the voting monitor was administrating and supervising a secret ballot vote for an election of directors, he or she would follow secret ballot procedures found in the existing election procedure laws .
Under the proposed law, only the voting monitor would be allowed to open and count the ballots.
It could be a long wait for results while the voting monitor opens ballots, which could number in the hundreds. Under the proposed current law, it appears the voting monitor, not the associations, would keep records of these votes.
It is seems somewhat ironic that the state division is proposing the voting monitor requirement. In fact, the recent construction defect litigation HOA scandal that sparked dozens of federal indictments also had election fraud that occurred with the counting of the ballots.
The proposed law does not include any penalty if the voting monitor was to commit fraud.
The new law seems needless. The Legislature addressed homeowner association voting fraud in 2009 when it passed NRS 116.31107.
The statute classifies the willful efforts to fraudulently alter the outcome of a board election or any other homeowners vote as a it a Class D felony.
Illegal efforts include changing or falsifying a voter’s ballot; forging or falsely signing a voter’s ballot; fraudulently casting a vote for another person who is not authorized to vote; rejecting, failing to count, destroying, defacing or otherwise invalidating the ballots of another voter and submitting a counterfeit ballot.
A Class D felony means that an individual could be sentenced to one to four years in prison and fined $5,000.
This proposed law ignores the additional costs and voting delays that having monitors could create. Also, there are no set periods or deadlines for considering voting monitors. A president, for example, could decide the day before an election that a voting monitor is needed.
It is not necessary to add an administrative layer to an already overburdened division.
Even if this law passes, the commission should have an oversight role in setting qualifications for voting monitors.
An alternative for having permanent monitors is to authorize the state Real Estate Commission require homeowners associations that violate state election laws to temporarily hire a voting monitor as a penalty. The commission could waive this requirement when it deems the association again capable of conducting its own elections.
In next week’s column I will talk about another controversial proposed law, which is sponsored by the Nevada Real Estate Division, and would create a referee program for area HOAs.
Barbara Holland, certified property manager, broker and supervisory certified association manager, is president and owner of H&L Realty and Management Co. Questions may be sent to Association Q&A, P.O. Box 7440, Las Vegas, NV 89125. Fax is 702-385-3759, email is email@example.com. Holland is also available to speak at your organization or company.