I've seen some shady stuff done by the HKCA Board in my 14 years at Honua Kai, but this one takes the cake. The cornerstone of democracy is fair elections and it's my opinion that the Board has flagrantly tampered with the 2024 Hokulani elections to favor its own interests over yours. Mind you, I'm not accusing them of committing a crime in the legal sense since election tampering is a federal crime carrying serious penalties. Rather I consider this act a crime against HKCA, particularly Hokulani owners like me who had our rights carelessly trampled upon by the Board.
Please read on to understand the specifics about the laws which govern our board elections and how they were intentionally violated. First, let me share some basic definitions which are essential in this matter. These are from the Cambridge Dictionary which is a well regarded reference on the English language:
ELECTION: a time when people vote in order to choose someone for a political or official job or action
VOTING: the activity of choosing someone or something in an election
ELECTRONIC VOTING: the process of voting or or of counting votes by any of various electronic means:
TAMPERING: the action of touching or making changes to something that you should not, usually when you are trying to damage it or do something illegal
Here is the key point - electronic voting is just a method of casting a vote via electronic means. In our case, we had been using paper ballots in our annual meetings to cast votes so authorizing electronic voting means you can use an electronic method as well. IT CHANGES NOTHING ELSE ABOUT AN ELECTION!!
That is the absolute critical legal point here - the HI legislature did not intend nor authorized the use of electronic voting to entirely change the rules of an established election including when it is held and who is eligible to vote. However, as you will soon see, the board did exactly this to favor the reelection of incumbent directors and in doing so tampered with the election.
This all began last year in the 2023 HKCA Annual Meeting, an owner named Daniel Espinoza made the following motion which was adopted by unanimous consent, meaning no one in the room objected:
Resolution to Amend Voting Procedures
Whereas, the current voting procedure for the election of directors and other decisions requiring a vote by the members of Honua Kai Condominium Association, Inc. is primarily conducted via a proxy system; and Whereas, it is recognized that providing other methods of voting can increase participation and convenience for all members; Now, therefore be it resolved that in accordance with HRS Section 514B121(e), electronic meetings and electronic, machine, or mail voting may be authorized by the Board, in its sole discretion, for use at the 2024 annual meeting and/or the election of directors in 2024;
Be it further resolved that the membership requests that the Board, with the assistance of the Association’s attorney, prepare and submit to the owners for their vote or written consent in the year 2024, an amendment of the Declaration or Bylaws empowering the Board, in its sole discretion, to the extent permitted by law,to authorize electronic meetings and electronic, machine, or mail voting in connection with Association meetings and the elections of directors. (David Espinoza)
While I don't know David Espinoza, it's obvious this was written by an attorney, likely the board's attorney Anne Anderson if I had to guess. There is nothing improper about this motion as far as I can tell and that's why I didn't object to it when it was presented. When you skip the legal mumble jumble, it basically just says "in accordance with HRS Section 514B121(e), electronic meetings and electronic, machine, or mail voting may be authorized by the Board, in its sole discretion, for use at the 2024 annual meeting and/or the election of directors in 2024". All this does is restate the HI statute saying the board has the authority to authorize electronic voting for the 2024 annual meeting and/or board elections.
Here's where the definitions above are essential - electronic voting is just another method of casting a vote in an election. In past annual meetings, votes could only be cast on paper ballot and tabulated manually which is a time consuming and labor intensive process. What I and every other owner at the meeting understood this resolution to mean is that the board had the authority to implement electronic voting at the 2024 annual meeting - and why not if it sped up the agonizingly slow process of tabulating paper ballots.
This is critical - notice that there is absolutely no mention in the motion of holding a separate standalone election for directors before the annual meeting and as such, this was never authorized by owners. Had this been included, then I and other owners would have immediately objected to this on the grounds that it was in direct violation of HKCA Bylaws 2.09 which requires all board elections to be held during annual meetings without exception: Such a motion would have been ruled invalid.
HKCA BYLAWS 2.09 Annual Meetings.
A meeting of the Association shall be held at least once each year at such time as the Board shall from time to time determine. ... At such meetings the Board shall be elected by ballot of the Owners in accordance with the requirements of Section 3.01. The Owners may transact such other business at such meetings as may properly come before them.
What is indisputable is that during annual meetings Board elections must be conducted by a ballot of owners and any other business to be transacted is optional. This leaves only two possible ways that a Board election can be held outside of an annual meeting:
(1) the Bylaws are amended to allow this through a 2/3rds vote of the membership
(2) a state law explicitly authorizes the board to hold a standalone electronic election
Since no Bylaw amendment was approved by owners, the Board is claiming that HI statute HRS 514B-121(e) gives it the authority to hold a separate board election outside of the annual meeting. However, does this statute actually give it that authority? To determine this, we must examine the exact language of the statute:
§514B-121 Association meetings.
(a) A meeting of the association shall be held at least once each year
(e) All association meetings shall be conducted in accordance with the most recent edition of Robert's Rules of Order Newly Revised. Notwithstanding any provision to the contrary in the association's declaration or bylaws or in subsection (b), electronic meetings and electronic, machine, or mail voting may be authorized by the board in its sole discretion:
(1) During any period in which a state of emergency or local state of emergency, declared pursuant to chapter 127A, is in effect in the county in which the condominium is located;
(2) For any association meeting for which notice was given while a state of emergency or local state of emergency, declared pursuant to chapter 127A, was in effect for the county in which the condominium is located but is no longer in effect as of the date of the meeting; provided that the meeting is held within sixty days of the date the notice was first given;
(3) For any electronic, machine, or mail voting for which notice of voting has been sent; provided that the electronic, machine, or mail voting deadline is within sixty days of the date the notice was first sent;
(4) Whenever approved in advance by:
(A) Written consent of a majority of unit owners; or
(B) Majority vote at an association meeting; or
(5) Whenever otherwise authorized in an association's declaration or bylaws.
There are a couple of critical things to note in the precise language of the statute:
1. It is titled "Association Meetings" which means the statute's application scope is limited to activities that take place during an association meeting. In this case, the Board is holding an election entirely outside of an association meeting. As such, the statute should not apply. Further evidence is found in HRS 514B-121(e)(b) with the intentional use of the coordinating conjunction "and" which associates electronic voting with meetings clearly indicating they are connected and not separate acts otherwise "or" would have been used.
2. Even if you dismiss the statute title as being irrelevant (you shouldn't), it's important to note that the word "election" never appears in HRS 514B-121(e). Only the term "electronic voting" does. This means only the use of electronic voting as a method for casting votes in an Association Meeting is authorized under the statute. No other aspect or rules for an election are affected or changed by this statute. Electronic voting does not give the Board authority to establish entirely different election rules which directly conflict with the Association's governing documents - it only authorizes the casting of votes through electronic means in an election which otherwise remains the same!.
So even though this motion was approved unanimously thus satisfying HRS 514BB-121(e)(4), it does not authorize a different election method or rules, it only authorizes electronic voting as an approved method for casting votes in the election. This is why the standalone Hokulani board election is not authorized under either HKCA governing documents or HI state law. Lacking an amendment to the HKCA Bylaws, the elections must be properly held during the annual meeting and not before in order to be legally valid.
As for the Board's motivation for this act which directly violates HKCA Bylaws, that's obvious for anyone who attended the 2023 annual meeting. As a result of a joint campaign by the three largest property managers to obtain proxies from their owners, the 3 long time incumbent directors for Konea including President Mumm were replaced by 3 newcomers thus adding new blood to the board for the first time in many years. While that's not a bad thing, the board decided to take whatever actions were necessary to prevent this from ever happening again. Knowing that the only way to eliminate proxy voting is to remove the elections from the annual meeting, they set out to find a way to do this by turning to attorney Anne Anderson who has a long history of providing decidedly one-sided legal opinions which favor the board's interest over those of owners. The problem in this case is her legal opinion is FATALLY FLAWED as I've just proven. Yet, the board will rely upon it because it suits their objective of eliminating proxy voting.
Now I turn to the topic of election tampering. After the Board refused my calls to comply with HKCA bylaws by using electronic voting as an additional accepted method to cast ballots at the 2024 annual meeting, it proceeded with holding the standalone board election with electronic voting from Oct 9 - Nov 8th. It is important to recognize the obvious fact that the Board is not an impartial party to this election when one third (4 of 12) of its members are facing an election. It is clearly to the Board's advantage to retain the current directors when they all appear to work well together as evidenced by unanimous votes. They are friends and colleagues who spend long hours working together. However, it is for this very reason that the Board should have had nothing to do with the election once it was underway and allowed it to be handled entirely by Associa acting as the Chief Election Officer under HI state electronic voting laws.
However, that's not what happened. On Oct 24th, about halfway into the election, President Roshy Hafezi sent an email out to all Hokulani owners informing them that only 27% of owners had voted and reminding them that their participation was essential to electing directors. While this may at first glance appear as a well intentioned reminder by the Board President, it was evidence of the fact that she had access to confidential voting records not available to anyone else. While these records did say how a unit owner voted, it did tell exactly who had voted and from this she could determine who had not and therefore could be influenced into voting.
Again, keep in mind the definition of tampering - an act intended to influence or change the outcome of an event for illegitimate purposes. HKCA board elections are different than other elections in which the candidate who receives the most votes is elected. In addition to this, a candidate must receive at least a common share majority of the enclave to be elected. This means there are two equally important election factors at play - not only do you have to get the most votes but enough owner have to vote to elect you. Because of this, any action which increases voting participation in effect influences the outcome of the election since without sufficient participation election fails regardless of whether the candidate received the most votes.
As the Nov 8th deadline approached its final week, President Hafezi again using confidential voting records from the Vote Buddy software not available to anyone else, sent emails to specific owners who had not yet voted urging them to vote. Then in the final days before the deadline she ordered office staff to make phone calls to owners who still had not voted.
Did this directly influence the outcome of the election - absolutely by increasing participation by reaching only those owners who had yet to vote, something only she knew. If I had access to the same confidential voting records and make phone calls only to those owners who had not yet voted and could therefore still be persuaded,, that would absolutely be considered election tampering! So when the Board President does this it's not? This frankly doesn't pass the sniff test - tampering is tampering regardless of who does it.
One of the excuses given by President Hafezi in a letter she just sent owners is that this was okay because she didn't telling owners who to vote for, and only encouraged them to vote. As such, that should not favor the incumbent directors over the challengers .. or should it? The main reason board elections have been held during annual meetings is the opportunity for owners to meet the candidates before voting and get to know them. Also, when the electronic election was announced, the Board also promised owners that an online meet the candidates forum would be held to give all owners the opportunity to get to know them and ask questions.
However, this never happened and it was according to my sources President Hafezi who reneged this promise claiming HKCA had no obligation to host this. So with no opportunity to get to know the challengers other than a 1 page candidacy letter, the incumbent directors had a strong innate advantage, particularly when the message to vote is coming directly from the Board President.
When I served as director for 8 years, I prided myself for always upholding the highest level of ethics, integrity, and honesty in my conduct as a director. It is a high bar which the rest of the board apparently cares little about. However, it is the standard that we owners MUST demand when we pay as much as we do for HKCA maintenance fees. Despite what they may believe, the board is not a private club where they can do whatever they please for their own benefit - it is our form of government and we as owners must demand these highest standards of conduct to be upheld. This only works if every owner does their job in holding the board accountable.
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