Don't open ballot box before board meeting

Q. Our association utilizes mail-in ballots for elections to the board. The association's accounting firm (which also tallies our election results) opened the ballot box before last year's election with only their personnel present in order to ensure a quorum before the annual meeting. Shouldn't that ballot box be sealed until, and only opened at, the election?

A. One of the purposes of having an independent third party act as an election inspector is to ensure a fair election; this involves maintaining the security of the ballots and ballot box. The practice of opening the ballot box, and the actual ballots prior to the annual meeting, may be innocuous and not involve any impropriety. However, it can give rise to an appearance of impropriety, and opens the door to attacks on the election procedure by those who might claim this practice is conducted for a nefarious purpose.

And even the most unintended of consequences can result when ballots are removed from the ballot box prior to the election. For example, a ballot can be inadvertently lost or misplaced.

Neither the Condominium Property Act nor the Common Interest Community Association Act expressly addresses this issue. Further, there is no Illinois appellate court decision on the issue.

The Condominium Property Act (Section 18(e)) does provide that "a candidate for election to the board of managers or such candidate's representative shall have the right to be present at the counting of ballots at such election."

The Illinois General Not for Profit Corporation Act (Section 107.35) authorizes the appointment of election inspectors, and provides in relevant part:

"At any meeting of members, the chairman of the meeting may, or upon the request of any members shall, appoint one or more persons as inspectors for such meeting, unless an inspector or inspectors shall have been previously appointed for such meeting in the manner provided by the bylaws of the corporation.

"Such inspectors shall ascertain and report the number of votes represented at the meeting, based upon their determination of the validity and effect of proxies; count all votes and report the results; and do such other acts as are proper to conduct the election and voting with impartiality and fairness to all the members."

I infer from these statutes that the ballots are to be opened, for all purposes, at the annual meeting, and not before.

Other states do have regulations in place that expressly provide that no person shall open or otherwise review any ballot prior to the time and place at which the ballots are counted and tabulated.

Many associations adopt, or their governing documents expressly require them to follow, Robert's Rules of Order. Robert's Rules of Order Newly Revised, 11th Edition, provides that "the person designated as addressee for the returned ballots should hold them in the outer envelopes for delivery, unopened, at the meeting of the tellers where the votes are to be counted."

Moreover, a quorum is determined at the annual meeting, not prior to the annual meeting. I appreciate that there may be some sort of administrative convenience of having the election inspector review ballots before the annual meeting. However, I don't believe it is the best practice, and may give cause to those that may seek to challenge an election. It just doesn't seem like a practice whose benefit is outweighed by the risk.

The inspector could certainly keep a count of the ballots received as they are placed in the ballot box, and this would give a general sense of whether there is quorum. However, I would not suggest opening the ballot box and reviewing any ballots prior to the annual meeting.

If taking the time to open ballots at the annual meeting to determine if a quorum is present is too time consuming, associations should consider utilizing electronic voting.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.