Have you seen any misstatements, half-truths or inflammatory rhetoric floating the neighborhood on an anonymous election flyer? Below is a helpful tip from the Newsletter by ADAMS | STIRLING PLC.

Who’s the author of this Anonymous Flyer? You or perhaps your HOA neighbor?

QUESTION: We have someone distributing an election flyer with false statements and inaccuracies with no attribution. Can we add to our election rules that flyers must identify who wrote them?

ANSWER: I believe you can and there are good reasons for doing so.

Reasons for Anonymity.  Sometimes a flyer is anonymous because the writer fears retaliation. From my experience, that makes up only 10-20% of flyers. The other 80-90% of anonymous flyers are hit pieces. The writer does not identify himself so he can freely engage in misstatements, half-truths and inflammatory rhetoric, whether it be against candidates for the board or existing board members.

Venomous Flyer.  In one association I worked with, someone distributed a venomous flyer throughout the community in the dead of night. The flyer targeted a newly elected director who was the swing vote on a divided board. The next morning, the director found the flyer and read it. He suffered a stroke, went into a coma and died. It put the community into an uproar. The board deadlocked and a provisional director was appointed by the court to fill the open seat. The author of the toxic flyer was never identified.

Benefits of Attribution.  As a result of this and other experiences involving anonymous flyers, I am a fan of requiring all flyers identify the author. Doing so helps moderate inflammatory rhetoric and untruths. Knowing the source also helps readers evaluate the credibility of the information.

Plea to Not Elect.  In another association, one director mistreated staff and was particularly disruptive at board meetings making it difficult to accomplish any business. When the problem director’s seat was up for election and she decided to run for another term, the other four directors signed a flyer which they distributed at their own expense describing all the problems they had with the director. They pleaded with members not to reelect her and made it clear they would all resign if she were reelected. She was not reelected.

Statute.  Associations cannot prohibit flyers but they can regulate them. The Davis-Stirling Act allows for the distribution of flyers without prior permission subject to reasonable hours and in a reasonable manner. (Civ. Code §4515(b)(5).) The reasonable hours and manner provision allows associations to regulate how late people can knock on doors to hand out leaflets, affixing flyers to walls, doors, windows, vehicles, etc. In my opinion, it also allows for the requirement that flyers identify their authors.

California Election Code.  The reasonableness of this requirement can be gauged by similar requirements in California’s election laws. The Political Reform Act (PRA) of 1974 regulates elections so as to foster public trust in the political system. To promote transparency, the PRA requires political ads include a disclosure that they are “Paid for by,” followed by the name of the committee. “Committee” is broadly defined to include a person or entity making independent expenditures on candidates or ballot measures.

RECOMMENDATION:  Not everyone will agree with my recommendation on transparency, i.e., that flyers identify their author. Boards should consult with legal counsel if this becomes an issue in their association.

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