BILL NUMBER: SB 1560 CHAPTERED
BILL TEXT
CHAPTER 310
FILED WITH SECRETARY OF STATE SEPTEMBER 18, 2006
APPROVED BY GOVERNOR SEPTEMBER 18, 2006
PASSED THE SENATE AUGUST 23, 2006
PASSED THE ASSEMBLY AUGUST 14, 2006
AMENDED IN ASSEMBLY AUGUST 8, 2006
AMENDED IN ASSEMBLY JUNE 20, 2006
AMENDED IN ASSEMBLY JUNE 5, 2006
AMENDED IN SENATE MAY 4, 2006
AMENDED IN SENATE APRIL 6, 2006
INTRODUCED BY Senator Battin
FEBRUARY 23, 2006
An act to amend Sections 1363.03 and 1365.2 of the Civil Code,
relating to common interest developments, and declaring the urgency
thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 1560, Battin Common interest developments: governance.
(1) The Davis-Stirling Common Interest Development Act governs the
establishment and management of common interest developments. These
provisions require that a common interest development be managed by
an association and that elections related to the governance or
administration of the common interest development conform to
specified requirements. Existing law authorizes a member of an
association to bring a civil action to enforce his or her rights and
authorizes a court to impose a civil penalty of up to $500 for a
violation of the provisions governing elections.
This bill would revise provisions governing the conduct of
elections in a common interest development. Among other things, the
bill would require an association to adopt rules to allow one or more
inspectors to appoint or oversee independent 3rd parties to verify
signatures and count and tabulate votes, specify that a quorum shall
only be required if so stated in the governing documents of the
association or other provision of law, permit a ballot received by
the inspector of elections to be treated as a member present for
purposes of a quorum, authorize a secret ballot to be distributed and
voted upon by the membership without a meeting, and impose other
requirements relating to proxies and secret ballots, as specified.
(2) Existing law also requires the association of a common
interest development to make the accounting books and records and the
minutes of proceedings of the association available for inspection
and copying by a member of the association, or the member's
designated representative. The act permits the association to
withhold or redact information from the association records regarding
interior architectural plans and security features for individual
homes. The act prohibits the association or an officer, director,
employee, agent or volunteer of the association from being liable for
damages for failing to withhold or redact information unless the
failure to withhold or redact information was intentional or
negligent.
This bill would revise and recast those provisions to permit the
association to withhold or redact information from the association
records regarding interior architectural plans for individual homes,
including security features. This bill would additionally prohibit a
3rd party from being liable for damages for failing to withhold or
redact information unless the failure to withhold or redact
information was intentional or negligent. This bill would permit the
associate to deliver documents by electronic transmission or
machine-readable storage if those records are transmitted in a
redacted format, as specified.
(3) The bill would declare that it is to take effect immediately
as an urgency statute, but its provisions would become operative on
July 1, 2006.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1363.03 of the Civil Code is amended to read:
1363.03. (a) An association shall adopt rules, in accordance with
the procedures prescribed by Article 4 (commencing with Section
1357.100) of Chapter 2, that do all of the following:
(1) Ensure that if any candidate or member advocating a point of
view is provided access to association media, newsletters, or
Internet Web sites during a campaign, for purposes that are
reasonably related to that election, equal access shall be provided
to all candidates and members advocating a point of view, including
those not endorsed by the board, for purposes that are reasonably
related to the election. The association shall not edit or redact any
content from these communications, but may include a statement
specifying that the candidate or member, and not the association, is
responsible for that content.
(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.
(3) Specify the qualifications for candidates for the board of
directors and any other elected position, and procedures for the
nomination of candidates, consistent with the governing documents. A
nomination or election procedure shall not be deemed reasonable if it
disallows any member of the association from nominating himself or
herself for election to the board of directors.
(4) Specify the qualifications for voting, the voting power of
each membership, the authenticity, validity, and effect of proxies,
and the voting period for elections, including the times at which
polls will open and close, consistent with the governing documents.
(5) Specify a method of selecting one or three independent third
parties as inspector, or inspectors, of election utilizing one of the
following methods:
(A) Appointment of the inspector or inspectors by the board.
(B) Election of the inspector or inspectors by the members of the
association.
(C) Any other method for selecting the inspector or inspectors.
(6) Allow the inspector, or inspectors, to appoint and oversee
additional persons to verify signatures and to count and tabulate
votes as the inspector or inspectors deem appropriate, provided that
the persons are independent third parties.
(b) Notwithstanding any other law or provision of the governing
documents, elections regarding assessments legally requiring a vote,
election and removal of members of the association board of
directors, amendments to the governing documents, or the grant of
exclusive use of common area property pursuant to Section 1363.07
shall be held by secret ballot in accordance with the procedures set
forth in this section. A quorum shall be required only if so stated
in the governing documents of the association or other provisions of
law. If a quorum is required by the governing documents, each ballot
received by the inspector of elections shall be treated as a member
present at a meeting for purposes of establishing a quorum. An
association shall allow for cumulative voting using the secret ballot
procedures provided in this section, if cumulative voting is
provided for in the governing documents.
(c) (1) The association shall select an independent third party or
parties as an inspector of election. The number of inspectors of
election shall be one or three.
(2) For the purposes of this section, an independent third party
includes, but is not limited to, a volunteer poll worker with the
county registrar of voters, a licensee of the California Board of
Accountancy, or a notary public. An independent third party may be a
member of the association, but may not be a member of the board of
directors or a candidate for the board of directors or related to a
member of the board of directors or a candidate for the board of
directors. An independent third party may not be a person, business
entity, or subdivision of a business entity who is currently employed
or under contract to the association for any compensable services
unless expressly authorized by rules of the association adopted
pursuant to paragraph (5) of subdivision (a).
(3) The inspector or inspectors of election shall do all of the
following:
(A) Determine the number of memberships entitled to vote and the
voting power of each.
(B) Determine the authenticity, validity, and effect of proxies,
if any.
(C) Receive ballots.
(D) Hear and determine all challenges and questions in any way
arising out of or in connection with the right to vote.
(E) Count and tabulate all votes.
(F) Determine when the polls shall close, consistent with the
governing documents.
(G) Determine the tabulated results of the election.
(H) Perform any acts as may be proper to conduct the election with
fairness to all members in accordance with this section, the
Corporations Code, and all applicable rules of the association
regarding the conduct of the election that are not in conflict with
this section.
(4) An inspector of election shall perform his or her duties
impartially, in good faith, to the best of his or her ability, and as
expeditiously as is practical. If there are three inspectors of
election, the decision or act of a majority shall be effective in all
respects as the decision or act of all. Any report made by the
inspector or inspectors of election is prima facie evidence of the
facts stated in the report.
(d) (1) For purposes of this section, the following definitions
shall apply:
(A) "Proxy" means a written authorization signed by a member or
the authorized representative of the member that gives another member
or members the power to vote on behalf of that member.
(B) "Signed" means the placing of the member's name on the proxy
(whether by manual signature, typewriting, telegraphic transmission,
or otherwise) by the member or authorized representative of the
member.
(2) Proxies shall not be construed or used in lieu of a ballot. An
association may use proxies if permitted or required by the bylaws
of the association and if those proxies meet the requirements of this
article, other laws, and the association's governing documents, but
the association shall not be required to prepare or distribute
proxies pursuant to this section.
(3) Any instruction given in a proxy issued for an election that
directs the manner in which the proxyholder is to cast the vote shall
be set forth on a separate page of the proxy that can be detached
and given to the proxyholder to retain. The proxyholder shall cast
the member's vote by secret ballot. The proxy may be revoked by the
member prior to the receipt of the ballot by the inspector of
elections as described in Section 7613 of the Corporations Code.
(e) Ballots and two preaddressed envelopes with instructions on
how to return ballots shall be mailed by first-class mail or
delivered by the association to every member not less than 30 days
prior to the deadline for voting. In order to preserve
confidentiality, a voter may not be identified by name, address, or
lot, parcel, or unit number on the ballot. The association shall use
as a model those procedures used by California counties for ensuring
confidentiality of voter absentee ballots, including all of the
following:
(1) The ballot itself is not signed by the voter, but is inserted
into an envelope that is sealed. This envelope is inserted into a
second envelope that is sealed. In the upper left hand corner of the
second envelope, the voter shall sign his or her name, indicate his
or her name, and indicate the address or separate interest identifier
that entitles him or her to vote.
(2) The second envelope is addressed to the inspector or
inspectors of election, who will be tallying the votes. The envelope
may be mailed or delivered by hand to a location specified by the
inspector or inspectors of election. The member may request a receipt
for delivery.
(f) All votes shall be counted and tabulated by the inspector or
inspectors of election or his or her designee in public at a properly
noticed open meeting of the board of directors or members. Any
candidate or other member of the association may witness the counting
and tabulation of the votes. No person, including a member of the
association or an employee of the management company, shall open or
otherwise review any ballot prior to the time and place at which the
ballots are counted and tabulated. The inspector of election, or his
or her designee, may verify the member's information and signature on
the outer envelope prior to the meeting at which ballots are
tabulated. Once a secret ballot is received by the inspector of
elections, it shall be irrevocable.
(g) The tabulated results of the election shall be promptly
reported to the board of directors of the association and shall be
recorded in the minutes of the next meeting of the board of directors
and shall be available for review by members of the association.
Within 15 days of the election, the board shall publicize the
tabulated results of the election in a communication directed to all
members.
(h) The sealed ballots at all times shall be in the custody of the
inspector or inspectors of election or at a location designated by
the inspector or inspectors until after the tabulation of the vote,
and until the time allowed by Section 7527 of the Corporations Code
for challenging the election has expired, at which time custody shall
be transferred to the association. If there is a recount or other
challenge to the election process, the inspector or inspectors of
election shall, upon written request, make the ballots available for
inspection and review by an association member or his or her
authorized representative. Any recount shall be conducted in a manner
that preserves the confidentiality of the vote.
(i) After the transfer of the ballots to the association, the
ballots shall be stored by the association in a secure place for no
less than one year after the date of the election.
(j) Notwithstanding any other provision of law, the rules adopted
pursuant to this section may provide for the nomination of candidates
from the floor of membership meetings or nomination by any other
manner. Those rules may permit write-in candidates for ballots.
(k) Except for the meeting to count the votes required in
subdivision (f), an election may be conducted entirely by mail unless
otherwise specified in the governing documents.
(l) The provisions of this section apply to both incorporated and
unincorporated associations, notwithstanding any contrary provision
of the governing documents.
(m) The procedures set forth in this section shall apply to votes
cast directly by the membership, but do not apply to votes cast by
delegates or other elected representatives.
(n) In the event of a conflict between this section and the
provisions of the Nonprofit Mutual Benefit Corporation Law (Part 3
(commencing with Section 7110) of Division 2 of Title 1 of the
Corporations Code) relating to elections, the provisions of this
section shall prevail.
(o) The amendments made to this section by the act adding this
subdivision shall become operative on July 1, 2006.
SEC. 2. Section 1365.2 of the Civil Code is amended to read:
1365.2. (a) For the purposes of this section, the following
definitions shall apply:
(1) "Association records" means all of the following:
(A) Any financial document required to be provided to a member in
Section 1365.
(B) Any financial document or statement required to be provided in
Section 1368.
(C) Interim financial statements, periodic or as compiled,
containing any of the following:
(i) Balance sheet.
(ii) Income and expense statement.
(iii) Budget comparison.
(iv) General ledger. A "general ledger" is a report that shows all
transactions that occurred in an association account over a
specified period of time.
The records described in this subparagraph shall be prepared in
accordance with an accrual or modified accrual basis of accounting.
(D) Executed contracts not otherwise privileged under law.
(E) Written board approval of vendor or contractor proposals or
invoices.
(F) State and federal tax returns.
(G) Reserve account balances and records of payments made from
reserve accounts.
(H) Agendas and minutes of meetings of the members, the board of
directors and any committees appointed by the board of directors
pursuant to Section 7212 of the Corporations Code; excluding,
however, agendas, minutes, and other information from executive
sessions of the board of directors as described in Section 1363.05.
(I) (i) Membership lists, including name, property address, and
mailing address, if the conditions set forth in clause (ii) are met
and except as otherwise provided in clause (iii).
(ii) The member requesting the list shall state the purpose for
which the list is requested which purpose shall be reasonably related
to the requester's interest as a member. If the association
reasonably believes that the information in the list will be used for
another purpose, it may deny the member access to the list. If the
request is denied, in any subsequent action brought by the member
under subdivision (f), the association shall have the burden to prove
that the member would have allowed use of the information for
purposes unrelated to his or her interest as a member.
(iii) A member of the association may opt out of the sharing of
his or her name, property address, and mailing address by notifying
the association in writing that he or she prefers to be contacted via
the alternative process described in subdivision (c) of Section 8330
of the Corporations Code. This opt-out shall remain in effect until
changed by the member.
(J) Check registers.
(2) "Enhanced association records" means invoices, receipts and
canceled checks for payments made by the association, purchase orders
approved by the association, credit card statements for credit cards
issued in the name of the association, statements for services
rendered, and reimbursement requests submitted to the association,
provided that the person submitting the reimbursement request shall
be solely responsible for removing all personal identification
information from the request.
(b) (1) The association shall make available association records
and enhanced association records for the time periods and within the
timeframes provided in subdivisions (i) and (j) for inspection and
copying by a member of the association, or the member's designated
representative. The association may bill the requesting member for
the direct and actual cost of copying requested documents. The
association shall inform the member of the amount of the copying
costs before copying the requested documents.
(2) A member of the association may designate another person to
inspect and copy the specified association records on the member's
behalf. The member shall make this designation in writing.
(c) (1) The association shall make the specified association
records available for inspection and copying in the association's
business office within the common interest development.
(2) If the association does not have a business office within the
development, the association shall make the specified association
records available for inspection and copying at a place that the
requesting member and the association agree upon.
(3) If the association and the requesting member cannot agree upon
a place for inspection and copying pursuant to paragraph (2), or if
the requesting member submits a written request directly to the
association for copies of specifically identified records, the
association may satisfy the requirement to make the association
records available for inspection and copying by mailing copies of the
specifically identified records to the member by first-class mail
within the timeframes set forth in subdivision (j).
(4) The association may bill the requesting member for the direct
and actual cost of copying and mailing requested documents. The
association shall inform the member of the amount of the copying and
mailing costs, and the member shall agree to pay those costs, before
copying and sending the requested documents.
(5) In addition to the direct and actual costs of copying and
mailing, the association may bill the requesting member an amount not
in excess of ten dollars ($10) per hour, and not to exceed two
hundred dollars ($200) total per written request, for the time
actually and reasonably involved in redacting the enhanced
association records as provided in paragraph (2) of subdivision (a).
The association shall inform the member of the estimated costs, and
the member shall agree to pay those costs, before retrieving the
requested documents.
(d) (1) Except as provided in paragraph (2), the association may
withhold or redact information from the association records for any
of the following reasons:
(A) The release of the information is reasonably likely to lead to
identity theft. For the purposes of this section, "identity theft"
means the unauthorized use of another person's personal identifying
information to obtain credit, goods, services, money, or property.
Examples of information that may be withheld or redacted pursuant to
this paragraph include bank account numbers of members or vendors,
social security or tax identification numbers, and check, stock, and
credit card numbers.
(B) The release of the information is reasonably likely to lead to
fraud in connection with the association.
(C) The information is privileged under law. Examples include
documents subject to attorney-client privilege or relating to
litigation in which the association is or may become involved, and
confidential settlement agreements.
(D) The release of the information is reasonably likely to
compromise the privacy of an individual member of the association.
(E) The information contains any of the following:
(i) Records of a-la-carte goods or services provided to individual
members of the association for which the association received
monetary consideration other than assessments.
(ii) Records of disciplinary actions, collection activities, or
payment plans of members other than the member requesting the
records.
(iii) Any person's personal identification information, including,
without limitation, social security number, tax identification
number, driver's license number, credit card account numbers, bank
account number, and bank routing number.
(iv) Agendas, minutes, and other information from executive
sessions of the board of directors as described in Section 1363.05,
except for executed contracts not otherwise privileged. Privileged
contracts shall not include contracts for maintenance, management, or
legal services.
(v) Personnel records other than the payroll records required to
be provided under paragraph (2).
(vi) Interior architectural plans, including security features,
for individual homes.
(2) Except as provided by the attorney-client privilege, the
association may not withhold or redact information concerning the
compensation paid to employees, vendors, or contractors. Compensation
information for individual employees shall be set forth by job
classification or title, not by the employee's name, social security
number, or other personal information.
(3) No association, officer, director, employee, agent or
volunteer of an association shall be liable for damages to a member
of the association or any third party as the result of identity theft
or other breach of privacy because of the failure to withhold or
redact that member's information under this subdivision unless the
failure to withhold or redact the information was intentional,
willful, or negligent.
(4) If requested by the requesting member, an association that
denies or redacts records shall provide a written explanation
specifying the legal basis for withholding or redacting the requested
records.
(e) (1) The association records, and any information from them,
may not be sold, used for a commercial purpose, or used for any other
purpose not reasonably related to a member's interest as a member.
An association may bring an action against any person who violates
this section for injunctive relief and for actual damages to the
association caused by the violation.
(2) This section may not be construed to limit the right of an
association to damages for misuse of information obtained from the
association records pursuant to this section or to limit the right of
an association to injunctive relief to stop the misuse of this
information.
(3) An association shall be entitled to recover reasonable costs
and expenses, including reasonable attorney's fees, in a successful
action to enforce its rights under this section.
(f) A member of an association may bring an action to enforce the
member's right to inspect and copy the association records. If a
court finds that the association unreasonably withheld access to the
association records, the court shall award the member reasonable
costs and expenses, including reasonable attorney's fees, and may
assess a civil penalty of up to five hundred dollars ($500) for the
denial of each separate written request. A cause of action under this
section may be brought in small claims court if the amount of the
demand does not exceed the jurisdiction of that court. A prevailing
association may recover any costs if the court finds the action to be
frivolous, unreasonable, or without foundation.
(g) The provisions of this section apply to any community service
organization or similar entity, as defined in paragraph (3) of
subdivision (c) of Section 1368, that is related to the association,
and this section shall operate to give a member of the community
service organization or similar entity a right to inspect and copy
the records of that organization or entity equivalent to that granted
to association members by this section.
(h) Requesting parties shall have the option of receiving
specifically identified records by electronic transmission or
machine-readable storage media as long as those records can be
transmitted in a redacted format that does not allow the records to
be altered. The cost of duplication shall be limited to the direct
cost of producing the copy of a record in that electronic format. The
association may deliver specifically identified records by
electronic transmission or machine-readable storage media as long as
those records can be transmitted in a redacted format that prevents
the records from being altered.
(i) The time periods for which specified records shall be provided
is as follows:
(1) Association records shall be made available for the current
fiscal year and for each of the previous two fiscal years.
(2) Minutes of member and board meetings shall be permanently made
available. If a committee has decisionmaking authority, minutes of
the meetings of that committee shall be made available commencing
January 1, 2007, and shall thereafter be permanently made available.
(j) The timeframes in which access to specified records shall be
provided to a requesting member are as follows:
(1) Association records prepared during the current fiscal year,
within 10 business days following the association's receipt of the
request.
(2) Association records prepared during the previous two fiscal
years, within 30 calendar days following the association's receipt of
the request.
(3) Any record or statement available pursuant to Section 1365 or
1368, within the timeframe specified therein.
(4) Minutes of member and board meetings, within the timeframe
specified in subdivision (d) of Section 1363.05.
(5) Minutes of meetings of committees with decisionmaking
authority for meetings commencing on or after January 1, 2007, within
15 calendar days following approval.
(6) Membership list, within the timeframe specified in Section
8330 of the Corporations Code.
(k) There shall be no liability pursuant to this section for an
association that fails to retain records for the periods specified in
subdivision (i) that were created prior to January 1, 2006.
(l) As applied to an association and its members, the provisions
of this section are intended to supersede the provisions of Sections
8330 and 8333 of the Corporations Code to the extent those sections
are inconsistent.
(m) The provisions of this section shall not apply to any common
interest development in which separate interests are being offered
for sale by a subdivider under the authority of a public report
issued by the Department of Real Estate so long as the subdivider or
all subdividers offering those separate interests for sale, or any
employees of those subdividers or any other person who receives
direct or indirect compensation from any of those subdividers,
comprise a majority of the members of the board of directors of the
association. Notwithstanding the foregoing, this section shall apply
to that common interest development no later than 10 years after the
close of escrow for the first sale of a separate interest to a member
of the general public pursuant to the public report issued for the
first phase of the development.
(n) This section shall become operative on July 1, 2006.
SEC. 3. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to ensure that these changes apply to elections conducted
by common interest developments as soon as possible, it is necessary
that this act take effect immediately. |