Are Member Votes Private?
September 9, 2014

Is a member of an association entitled to review the individual votes of an association election, or do the members of an association in Tennessee have some expectation of privacy as to their votes? In Sigel v. The Monarch Condominium Association, Inc., No. W2011-01150-COA-R3-CV (June 29, 2012), the Tennessee Court of Appeals addressed this question.

Dr. Sigel is a member of The Monarch Condominium Association, Inc., a residential condominium association located in Memphis (the “Monarch”). In 2010 he ran for the Monarch’s board of directors. During the election, he started a Google Group for the Monarch and posted various information about the condominium development. He was unsuccessful in his attempt to be elected. Subsequently, he contacted the board and asked to audit the election results. The board initially ignored his requests. Dr. Sigel then retained an attorney who contacted the board. At that point, the Monarch’s board provided Dr. Sigel with a tally sheet that indicated the total number of votes each candidate received at the election. The Monarch’s board did not provide Dr. Sigel with the actual votes of each member of the Association. Since pursuant to the Monarch’s bylaws, each member’s respective vote was weighted based upon the size of their respective unit, the allocation of votes was of concern to Dr. Sigel. Ultimately, he filed suit claiming that provisions of the Tennessee Condominium Act and the Tennessee Non-Profit Corporation Act required the Monarch to release the individual ballots for an audit. The Monarch claimed that the members of the association had an expectation of privacy in the ballots. The trial court denied Dr. Sigel’s motion for summary judgment and ruled that the Monarch was under no statutory obligation to provide the original ballots. Dr. Sigel then appealed the decision.

The Court of Appeals noted that there has been scant judicial review of the Tennessee Condominium Act. The Court then focused on the reporting provisions of the Tennessee Non-Profit Corporation Act and the Tennessee Condominium Act. The Court noted that the reporting requirements of these two acts are different. However, since the Tennessee Condominium Act specifically governs condominium associations, the Court, quoting Dobbins v. Terrazzo Mach. & Supply Co., 479 S.W. 2d 806, 809 (Tenn. 1972) (stating that “where the mind of the legislature has been turned to the details of a subject and they have acted upon it, a statute treating the subject in a general matter should not be considered as intended to effect the more particular provision.”), held that the more specific reporting requirements of the Tennessee Condominium Act applied.

Next, the Court reviewed the reporting requirements of the Tennessee Condominium Act, Tenn. Code §§ 66-27-417, -502, and -503. Of these, Tenn. Code § 66-27-502, as has been previously discussed here, lists certain information the condominium association must provide to certain parties. The Court investigated the differences between the requirements of this section and the requirements of Tenn. Code § 66-27-417 which requires the association to provide “other information”. Dr. Sigel argued that this “other information” should be read expansively to include the individual ballots of the members of the Monarch. The association argued that the statutes should be read in concert and “other information” should be construed as to mean the information required by Tenn. Code § 66-27-502. After reviewing the legislative history, the Court held in favor of the Monarch, reasoning that an expansive interpretation of “other information” in Tenn. Code § 66-27-417 would entitle unit owners to personal information of other unit owners merely because it was in the possession of the association. Thus, the Court ultimately held that Dr. Sigel could not have access to the individual votes from the 2010 election at the Monarch.

From this case, it can be inferred that members in an association have some expectation of privacy as to their votes. Associations in Tennessee should consider this when they hold elections. Certainly records of the election should be kept, but the individual votes of each member should be kept private if they were cast in secret.

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