Hopefully, you have now heard about WUCIOA (the Washington Uniform Common Interest ownership Act) and know that this “new statute” will replace both Condominium Acts and the HOA Act in Washington as of January 1, 2028. But if you haven’t looked at WUCIOA recently, then you might not know the changes that have been made since its original adoption in 2018.
Early this year, both houses of the Washington legislature passed Substitute Senate Bill 5129 (“SSB 5129”) with little opposition. Part 1 of this series advised that the bill makes a major change to the “meetings” section of the statute and further states that these changes will apply to pre-existing communities on January 1, 2026. That’s right – 2026 not 2028. The remainder of the statute will begin to apply to pre-existing communities on January 1, 2028, unless a community “opts in” to WUCIOA before that date.
But for existing WUCIOA communities, the significant changers made by SSB 5129 have an effective date of July 27, 2025 – that’s right – just a little over a month from now. Moreover, some of the changesthat apply this year represent a significant departure from provisions that the WUCIOA drafting committee originally drafted and appear to be borne out of an exaggerated fear of “rogue boards.”
Today, I wanted to let you know about just one of the changes to WUCIOA voting requirements in RCW 64.90.455 that will apply to WUCIOA communities this summer: Secret Ballots.
The changes to RCW 64.90.455 include a requirement for secret ballots for voting on certain issues that overrides any language in the community’s governing documents to the contrary. Starting this summer, secret ballots will be required for election of directors, removal of directors, and any governing document amendments to be voted on by the owners.
What Does “Secret Ballot” Mean?
A major problem with this change is that statute does not define what it means by “secret ballot”. In other words, who do the ballots have to be kept secret from? In a strict secret ballot process, not even the ballot counters would know who voted because instead of identifying the voter on the ballot, the identification would be on an envelope containing an anonymous ballot. On or after the voting deadline, voter identity would be verified using the outside envelope, then the anonymous ballot would be removed from the envelope to be counted by someone who could not associate the ballot with the voter. But the statute does not say whether this level of anonymity is required.
What we do know is that for amendments, elections, and removal of directors that take place during a meeting, a vote can no longer be taken in the open by a show of hands, roll call vote, or other “out loud” method because the intent behind the new requirement is to ensure that other owners do not know how an owner voted. At the same time, we also know that owners cannot simply cast anonymous ballots because the statute also contains an express requirement that the community must have procedures to verify that only owners with the right to vote have voted.
What we don’t know is whether ballots must remain truly secret from the Board or management, as would be the case with the strict secret ballot process referenced above. If strict secrecy is not required, then votes taken outside of meetings can occur in much the same way that they do now, with an additional caution to managers and directors to ensure that they do not disclose how owners voted. The association would also need to make sure that the ballots themselves do not show how an owner voted because then any ballots kept would disclose how the owner voted and would be considered association records. Perhaps ironically, this means that owners will not be able to independently verify that their vote or anyone else’s vote was counted properly because the ballots themselves will not identify the party casting the ballot.
The statute does say that directors and others running for the Board may not participate in the counting of the ballots, so there is at least some indication that secret ballots are intended to be kept secret from directors, in which case, that function may need to be delegated to the manager or to another person if the community is self-managed.
Lastly, there has been some indication that by requiring a secret ballot, the legislature intended that ballots could not be counted until the deadline has passed, which means that the community will not know whether a quorum has been reached or the measure passed until it is too late. But WUCIOA still allows a community to extend the deadline for voting if a quorum has not been reached or the percentage approval has not been reached by the original deadline, which could not be done if the community could not count votes before the deadline. Thus, it is unlikely that the secret ballot requirement goes this far but, as with many aspects of WUCIOA, we may not know what the new terms mean until a court interprets the language, which won’t happen until someone is sued for failing to follow these ambiguous procedures.
How Do Secret Ballots Work In a Meeting?
Unless the community opts for electronic voting, owners would have to submit secret ballots during the meeting, which doesn’t seem that difficult until you realize that you also have to provide a way for owners attending remotely to submit paper ballots during the meeting. Remember that if an Association is required to vote at a meeting (as with director removals), the votes must be submitted during the meeting and cannot be mailed in early or after the meeting has adjourned. Thus, the new requirement significantly complicates and extends the time necessary to hold a director removal meeting.
If your community traditionally holds its director elections during your annual meeting, then you will also need to plan for additional time during the meeting for submission of ballots, or even multiple rounds of submitting ballots if your governing documents do not allow “plurality” voting (where you vote all at once and the nominees with the most votes get elected). WUCIOA does give communities the option of electing directors outside of a meeting, but that would be a significant change for many Washington communities and, in my opinion, may make it even more difficult to get volunteers to serve on the Board because the new nomination requirements require owners to be nominated well before the vote is taken.
Electing directors and approving amendments over time outside of a meeting would resolve the issue of how to efficiently submit ballots during the meeting, but remember that removal of directors is required to take place at a meeting, which means all secret ballots must be submitted during the meeting, significantly extending the time it takes to count the votes. In short, it doesn’t take much imagination to see how requiring owners to submit secret ballots during a meeting could extend the time for the meeting and increase expense for the Association.
Aside from the procedural issues, WUCIOA’s new secret ballot requirement is, in my opinion, antithetical to the remainder of the WUCIOA, which emphasizes increased transparency rather than increased secrecy. The claim is that secrecy is needed to ensure that directors and others do not take action against owners who voted a certain way, and while there is no doubt that this type of behavior occasionally occurs, I do think that the frequency of this occurrence is significantly exaggerated and certainly does not warrant the increased expense and time it will take to do a secret ballot for every election, removal, and amendment.
Change is Coming Soon!
So, if you are already a WUCIOA community and have an amendment, director removal meeting, or elections coming up, please make sure contact your attorney to find out if your prior procedures will still work. Remember this change takes effect on July 26, 2025!
