Huber v. Thayer Towers Condominium Association ##49-13/04-14 (June 17, 2015) (Panel: Stevens, Molloy, Winegar)

A unit owner filed a complaint with the CCOC alleging that the association’s board of directors was not properly elected and could not act on behalf of the association.  He later filed a second complaint raising new issues, and the CCOC consolidated the two different complaints so they could be handled by a single hearing panel.

On the election issue, the unit owner claimed:

1. the call for nominations was not sent out 45 days in advance of the election notice, as

required by law;

2. the notice of election was sent by the property manager, not the board’s secretary as required by the bylaws;

3. the elections for 2011 and 2012 were not held on the dates prescribed by the bylaws;

4. the agenda for the annual meeting was not followed as prescribed by the bylaws;

5. the minutes of the annual meeting were incomplete;

6. the notice of a second annual meeting if there was no quorum at the first meeting did not comply with the law.

In the second complaint, he claimed that the association was violating the “open meetings” section of the Condominium Act and failed to maintain proper records of its closed meetings.

The association requested that the complaint be dismissed because at the time of the disputed elections, the complainant was only a tenant, not a member, and not entitled to vote.

The hearing panel ruled:

            1. the association violated Section 11-109 of the Condominium Act in 2011 by sending the call for nominations 18 days before the notice of the meeting and in 2012 by sending the call 30 days before the notice of the annual meeting.  The law requires 45 days’ notice.

The association also violated its bylaws by not holding its annual meetings on the 3^rd Tuesday of April each year.

            2. the board did not violate the bylaw that the secretary send out the election notices, this duty can be delegated by the board, and usually is delegated.  There was no evidence that any member was harmed by the short notice period.

            3.  the minutes of the 2011 annual meeting fail to show that a vote to hold a second meeting was taken when the there was no quorum at the first one.  The meeting notices themselves were proper, there was no proof that no vote was taken, and the minutes of later meetings show that votes were taken at those meetings.  The panel held that a vote was taken at the 2011 meeting.

            4. the Condominium Act allows those present at an annual meeting to call a second annual meeting if there is no quorum at the first meeting, and at the second meeting, whoever is present in person or by proxy constitutes a quorum for the conduct of business.  The law takes precedence over bylaws to the contrary and in any event the bylaws stated that the law would control.

            5.  county law (Section 10B-17) prohibits counting ballots before an election; however, all the association did here is to accept such ballots.  Receiving ballots that were not confidential is not the same as counting them.  Under the law, only unsigned absentee ballots must be sealed, proxy ballots need not be.

            6.  the complainant had the legal right to raise all election issues, even though he was only a tenant at the time of the disputed elections, because if the directors still sitting on the board were not properly elected, then he might be harmed by the decisions they made that were not valid.

            7. the panel will not invalidate an election, even if the association violated some rules in its conduct of the election, if there is no evidence that any person was harmed by the violations.  Here, there is no evidence that anyone who wanted to be a candidate was not allowed to be one, or that the results of the election would be any different from what they were.

            8.  the association violated the “open meetings” statute by failing to record in the minutes the reason to close the meeting and the vote of the directors on the motion to close it, and by failing to include this information in the minutes of the next open board meeting.  However, it also appeared that the substance of the closed meetings did fall under one or another of the exceptions contained in the “open meetings” statute.

The hearing panel ordered the association to hold its annual elections on the date specified in its bylaws and to send the election notices on time, but declined to invalidate the past elections.  The panel declined to invalidate the decisions made at the closed meetings but did order the association to comply with the reporting requirements of the “open meetings” law.