SB 323 continues Civil Code section 5100(f), which provides that "[d]irectors shall not be required to be elected pursuant to this article if the governing documents provide that one member from each separate interest is a director."
Section 5100(f)'s reference to "this article" is to the 2006 Election Law, Civil Code sections 5100-5145, which of course includes the bulk of SB 323.
Section 5100(f) is often overlooked, as its exemption from the complex secret ballot process for board elections is only available (a) if the CC&Rs, articles, or bylaws provide that one member from each separate interest (unit or lot) is a director, (b) if the community is small enough that a reasonably-sized board is possible, and, ideally, (c) if the community features an odd number of separate interests in order to avoid board deadlocks.
That being said, the astute reader will note that Section 5100(f) only exempts qualifying associations from director elections. Civil Code section 5100(a) still requires that all elections in small communities "regarding assessments legally requiring a vote, [the] removal of directors, amendments to the governing documents, or the grant of exclusive use of common area" be conducted in full compliance with Civil Code sections 5100-5145.
It is unclear why the drafters of SB 323 did not expressly exempt Section 5100(f) communities from the mandatory new election rule provisions. On a broader level, the bill also could have been used to exempt such communities from secret ballot voting per se, perhaps through a mechanism of using board meetings to conduct member votes. This would reflect the practical reality that board decisions in such communities are effectively plebiscites.
SB 323's sponsors predicated their bill on a generous reading of California precedent holding associations coextensive with municipalities. According to this view, associations have the same budgets, staff, and in-house counsel as cities. In other words, it is fair and prudent to hold a three-unit condo project to, say, Berkeley's election standards. This view could have easily been rebutted during the legislative process by the mountain of evidence which shows that election law compliance directly correlates with community size, but it was not.
Unfortunately, even the workaround of a simple amendment to CC&Rs, articles, or bylaws to qualify an association under Section 5100(f) is problematic, as such an election itself must be conducted in full compliance with SB 323. Nevertheless, for qualifying small communities, an amendment or update which provides that one member from each separate interest is a director could be used to circumvent SB 323's burdensome new director election provisions.
Section 5100(f) is often overlooked, as its exemption from the complex secret ballot process for board elections is only available (a) if the CC&Rs, articles, or bylaws provide that one member from each separate interest (unit or lot) is a director, (b) if the community is small enough that a reasonably-sized board is possible, and, ideally, (c) if the community features an odd number of separate interests in order to avoid board deadlocks.
That being said, the astute reader will note that Section 5100(f) only exempts qualifying associations from director elections. Civil Code section 5100(a) still requires that all elections in small communities "regarding assessments legally requiring a vote, [the] removal of directors, amendments to the governing documents, or the grant of exclusive use of common area" be conducted in full compliance with Civil Code sections 5100-5145.
It is unclear why the drafters of SB 323 did not expressly exempt Section 5100(f) communities from the mandatory new election rule provisions. On a broader level, the bill also could have been used to exempt such communities from secret ballot voting per se, perhaps through a mechanism of using board meetings to conduct member votes. This would reflect the practical reality that board decisions in such communities are effectively plebiscites.
SB 323's sponsors predicated their bill on a generous reading of California precedent holding associations coextensive with municipalities. According to this view, associations have the same budgets, staff, and in-house counsel as cities. In other words, it is fair and prudent to hold a three-unit condo project to, say, Berkeley's election standards. This view could have easily been rebutted during the legislative process by the mountain of evidence which shows that election law compliance directly correlates with community size, but it was not.
Unfortunately, even the workaround of a simple amendment to CC&Rs, articles, or bylaws to qualify an association under Section 5100(f) is problematic, as such an election itself must be conducted in full compliance with SB 323. Nevertheless, for qualifying small communities, an amendment or update which provides that one member from each separate interest is a director could be used to circumvent SB 323's burdensome new director election provisions.