FREE SPEECH in HOA ELECTION – I Can Say Whatever I Want in My Candidate Statement!

Here is the scenario – a board member puts in his or her candidate statement that he/she endorses the other incumbents, or that he/she thinks management should be fired. Is that legal in California? An owner not on the board wants to do the same! Can he/she do it?

It may be ?legal? but my take on it would be that the association does not have to circulate such a statement to owners. Why?

Civil Code Section 1363.03(a)(2) says:

[… that the Association Election Rules must]:

(2) Ensure access to the common area meeting space, if any exists, during a campaign, at no cost, to all candidates, including those who are not incumbents, and to all members advocating a point of view, including those not endorsed by the board, for purposes reasonably related to the election.

Civil Code Section 1363.04 says

1363.04. CAMPAIGN FUNDING.  (Section operative July 1, 2006)

(a) Association funds shall not be used for campaign purposes in connection with any association board election. Funds of the association shall not be used for campaign purposes in connection with any other association election except to the extent necessary to comply with duties of the association imposed by law.

(b) For the purposes of this section “campaign purposes” include, but are not limited to, the following:

(1) Expressly advocating the election or defeat or any candidate that is on the association election ballot.

(2) Including the photograph or prominently featuring the name of any candidate on a communication from the association or its board, excepting the ballot and ballot materials, within 30 days of an election, provided that this is not a campaign purpose if the communication is one for which subdivision (a) of Section 1363.03 requires that equal access be provided to another candidate or advocate.

**

Get it? The HOA or Condo Board should not be spending money to advocate any candidate unless all are given equal opportunity!

Candidates do have options to spout their views otherwise guaranteed in California law.

Of course, with regard to any election, I would want to know more about what is happening before I would give specific advice about what to do in a particular situation.  However, I can say the law is confusing and fraught with areas of disagreement among professionals, and if a board does not set the election up exactly right (which is elusive at best but see tips at my other blog for info on how to characterize the candidate statements at the outset) all kinds of controversy and demands can arise.

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2 Responses to FREE SPEECH in HOA ELECTION – I Can Say Whatever I Want in My Candidate Statement!
  1. Vanya (Matzek)
    December 24, 2009 | 12:02 am

    I was disappointed by the (curent) ending of your Q&A on FREE SPEECH in HOA ELECTION. The question mentioned two possible candidate assertions, but you addressed only one. I understand that a candidate should not be allowed to promote or detract from the election of another candidate, but I believe that a candidate should be able to declare in his or her statement a position on how the candidate would vote on hiring or firing a contractor, such as Management, Landscaping, or Security. What do you say on this issue? Would this free speech extend even to the firing of a specific employee of the Association?

    Early this year I was prepared to run for a Board set in order to advocate the replacement of our Management Company. By mid-year the Board beat me to it and did hire new Management. If that had not happened, I would have put DOWN WITH MANAGEMENT in my candadate statement.

    • Beth Grimm
      January 16, 2010 | 9:42 pm

      You, and a lot of others, would like to slam management or the board in candidate’s statements. I do not believe that kind of thing makes a candidate look very good. I think a candidate is better served by stating all of their good qualities and their positive intentions. Just take a look at the result of mud slinging in public elections – it brings the population down.

      I feel it is better for candidates to communicate their views about bad management or bad board actions in a direct communication from the owner to members, and only if they can back their statements up with real facts, not assumptions or personal dislikes. HOA owners have a right to receive a membership list with addresses, or a means of sending out a communication to owners. Sorry you were disappointed with an answer. My goal is to try and provide useful information, however, being there are different perspectives involved, it is easy to miss a point a reader would like to have heard more about, so thanks for the comment.