Blank ballots should not be counted for board recall

Q: I need your opinion and advice regarding a recall election that was held at my homeowners association. I believe the management company in charge of the recall election made a major error and unfairly and illegally caused me and another board member to be kicked off the board. The management company counted blank ballots toward me and I was recalled off the board. Before the recall, the board asked for clarification on the recall ballots. The clarification was very confusing and, according to the president of the management company's e-mail sent to the board, she stated that "blank ballots will not be counted as they are not cast ballots." However, they did count the blank ballots against me.

A week or so after the recall election results, she stated that we misunderstood her e-mail. The management company now advised that a homeowner returning the blank ballot was considered a cast ballot. Is that true? A blank ballot becomes as cast ballot because it was mailed back to the management company?

The ombudsman's office agrees with me that blank ballots are not considered cast ballots. Many of homeowners found the recall ballots totally confusing and e-mailed the management company with no response. The management company has attempted to intimidate me through their legal counsel with action against me, forcing me to pay for attorney fees if I pursue this. I am a retired homeowner with a fixed income.

What can I do or where can I go to get some resolution?

A: Prior to responding to your question, I obtained a copy of the attorney's letter. The attorney's letter summarized the recall election. First, instead of one ballot listing the four board members for the recall election, the management company had a separate ballot for each. On each of the ballots, the instructions were to "please mark and return the ballot, if you wish to remove the following board member from the board of directors." A homeowner simply needed to check the appropriate box and returned the ballot to the management company.

Per NRS statute, in order to have a legal recall election, 35 percent of the membership must cast their votes. Of that 35 percent, a majority of votes must be in favor of recall in order for the board member to be removed from the ballot.

There were six ballots returned without a mark on them in one case of one board member and seven ballots without a mark on them in another case for another board member. According to the attorney's letter, these unmarked ballots counted toward the 35 percent requirement. These unmarked ballots were not counted for or against the board members.

My first reaction when reading the e-mail from this recalled director was that I could not believe an attorney would send a letter stating that blank ballots could be counted in a recall election and actually thought that perhaps the reader was mistaken.

With all due respect to the attorney, I think he has erred in his interpretation of the law. First, the ballots should have been deemed invalid and voided and should not have been counted towards the 35 percent minimum requirement. The ballots that were sent to the homeowners clearly stated that they needed to be marked and returned to the management company.

For example, if a ballot instruction stated that you needed to vote for two board members in an election and you voted for three board members, that ballot would not be counted. It would be voided because the homeowner did not follow the precise instructions that were sent with the ballot.

This is exactly what happened in this recall election. Even though the ballots were not used in the determination of whether the majority of the votes cast were for recall, they were used in determining whether 35 percent of the membership cast their ballots. If you were to accept the logic and legal argument by the attorney, then in an association of 100 homeowners, if 30 homeowners sent back blank ballots and three homeowners voted to remove the directors and two homeowners voted against removal, the recall election would be valid and the board member would be removed. This simply defies logic.

To accept blank ballots as a form of casting a vote would be somewhat similar to a vote being cast by proxy and according to the laws pertaining to the recall of directors, proxy votes are not allowed.

Now, if the six or seven unmarked ballots were not needed in order to have the minimum 35 percent votes cast and, if the majority of the votes received were for removal, then the directors would have been legally removed. If the six or seven unmarked ballots were needed in order to obtain the minimum requirement of 35 percent of the membership, then the recall election would be invalid. If this is the case, then the recalled director or directors need to contact the ombudsman office and file a formal complaint.

Barbara Holland, CPM, and Supervisory CAM, is president of H&L Realty and Management Co. To ask her a question, e-mail support@hlrealty.com.