A savvy reader wrote us asking whether an election of board members using the unanimous consent technique violates Colorado law. The reader is aware that CCIOA Section 38-33.3-310(b)(I)(A) states that “votes for contested positions on the executive board shall be taken by secret ballot.”
Remember that any election, regardless of the method used, is actually just a vote. Holding a vote by unanimous consent is just one method of voting. CCIOA’s requirement of conducting a vote by secret ballot only applies to votes taken when the election is contested, that is, when you have more candidates running than positions open for election (e.g., 4 people are running for 3 open positions). If the candidates running are equal to or less than the positions open for election, and no one objects to taking a vote by unanimous consent, then you have not violated CCIOA. Make sure that you review our May 2011 Meeting Moment column on how to hold a valid vote by unanimous consent.
But we generally recommend that associations hold board elections by ballot anyway, rather than unanimous consent, to ensure that questions can’t arise in the future about whether the board was legitimately and legally elected.
Parliamentary Tip: The most important thing to remember about any method of voting is: if the chair is in doubt, hold the vote again. If necessary move to a more accurate method of voting (for example, by voice, by show of hands, by standing, or by ballot).
Obviously it is important for the peaceful governance of your community association to make sure there is always a validly elected board of directors. That’s why we recommend associations plan to conduct board elections by ballot, rather than unanimous consent, particularly in larger associations. It’s like insurance: although elections by ballot take more time and effort than by unanimous consent, they preserve the legitimacy of the process. If your association always holds an election by ballot, if someone later has a dispute with the board, they cannot question whether a board member was validly elected.