Colorado Statues Contradict (Proxies)

H.B. 09-1359):
"The executive board may not ... elect members of the executive board ..."

This clearly states that the board can't vote during elections, no?

If a popular board member is up for re-election against an 'otherwise unpopular owner' who is running for the board, if proxies are distributed with board members' names or the board president's name - and most indifferent homeowners just fill in whatever name is on the proxy, ie the board president - then that means that the board (or the board president) can "steer" his/her proxies to getting the popular board member re-elected, while the 'otherwise unknown unpopular owner' is screwed. Am I understanding this correctly??

But HB 09-1359 clearly states that the board can't elect members of the board.

I think it's wrong, and clearly illegal, for a board member to be assigned proxy privelages by indifferent homeowners - am I wrong on this???

Because I understand that the Colorado non-profit statue (I'm sorry, I don't know the technical law designate) contradicts HB 09-1359. So what gives??

Rog

Roger,

Typically a Director wears many hats. First the wear the hat of a member of the Association. 2nd, they wear the had as a Director and have the responsibility of making decisions for the Association. 3rd, they might be wearing the hat of an officer (President, VP, etc.) and have the responsibility of implementing the decisions made by the Directors. Therefore, even if a Director is not allowed to do something, the same individual may be able to as a member.

That said, I believe that you are misinterpreting CO HB 09-1359. The section you are posting about, 38-33.3-303, discusses powers of the Board. The specific paragraph you are referring to with your posting discusses that the Board may not act in place of the membership in electing Directors, as that right is reserved for the membership.

As I discussed, the individual who is serving as Director may still cast a vote as a member.

Here is the full text of that section:

(3) (a) The executive board may not act on behalf of the association
to amend the declaration, to terminate the common interest community, or
to elect members of the executive board or determine the qualifications,
powers and duties, or terms of office of executive board members, but the
executive board may fill vacancies in its membership for the unexpired
portion of any term.

Roger,

A person does not lose his/her rights (to vote) as a member of the association simply because he or she happens to be a member of the board of directors. What that sentence you quoted from the statute means, simply, is that the board cannot at a board of directors meeting vote to elect members to the board. Each board member, individually, may vote for the candidate of his/her choice at a meeting of the association that is being held for the purpose of electing directors to the board.

a member can choose whomever they wish as a proxy, even a board member. Consider a proxy as similar to a power of attorney for a specific purpose; that purpose being to represent the absent member at a members' meeting and to vote in place of that person. An individual can be a proxy for several members (homeowners) and thus be entitled to cast several votes. As Tim said, if it is a directed proxy, the person who is a proxy must vote according to the wishes of the person being represented. If the proxy is undirected, the individual holding the proxy can vote however he or she chooses.

As an example, suppose a homeowner holds five proxies, two are directed and three are undirected. That individual has a total of six votes, his own vote plus the five proxies. Two of the votes must be in accordance with the directions of the members issuing the proxies. The remaining four votes (the three undirected proxies and the member's own vote) can be voted however the individual holding those proxies wishes.