Proxy votes

HalT,
General answer: Hopefully you documents will address Proxies and spell out what is acceptable..

If they don't: Use the search top right of this page. There is a lot of stuff on file here. Another source is Robert's Rules of order, but most likely you will have specific local quidelines.

In any event: If you are questionimg your association procedures, past and present, be aware once the action is done, you will find it hard to undo. If fraud is concerned, you can file suit on your own, but I suspect it would not be worth it. Now, if procedures are just sloppy or have a heavy Board hand or are not counted correctly or any another sloppy treatment, spend the next year getting support to change your Proxy procedures to acceptable standards.

Hal,
Here is the Statute that you follow along with your governing documents (bylaws). It is 720:306 (8)

8) PROXY VOTING.--The members have the right, unless otherwise provided in this subsection or in the governing documents, to vote in person or by proxy. To be valid, a proxy must be dated, must state the date, time, and place of the meeting for which it was given, and must be signed by the authorized person who executed the proxy. A proxy is effective only for the specific meeting for which it was originally given, as the meeting may lawfully be adjourned and reconvened from time to time, and automatically expires 90 days after the date of the meeting for which it was originally given. A proxy is revocable at any time at the pleasure of the person who executes it. If the proxy form expressly so provides, any proxy holder may appoint, in writing, a substitute to act in his or her place.

Hal,

From the responses I read, I'm not sure your question is being answered. You didn't indicate that there was an issue, only an inquiry as to how proxy votes are handled. I don't know what the specifics are for Florida, or even if they are allowed for HOAs in Florida. And, of course, the specifics should be in your documents.

But, I can explain proxy voting in general, if that helps.

People sometimes get confused between proxy voting and absentee voting. They are not the same thing. Either is a way to vote if you can't be present in person, but absentee voting uses an absentee ballot, with the specific question or questions (or election) to be voted on placed on the ballot that only the individual entitled to vote can complete and return to be counted. Absentee voting cannot be used if the question to be decided or if all the candidates to be elected are not known prior to the meeting at which the voting is to take place. The reason is obvious; there is no way to place such information on the absentee ballot since it is unknown.

Proxy voting is a limited power of attorney. It is a document that is signed by the person who is entitled to vote authorizing another person (the proxy) to attend the meeting and vote as the individual's representative. Because candidates to be elected often can be nominated from the floor (and therefore not known beforehand, so their names cannot appear on an absentee ballot), proxy voting is often used, when allowed, as a method of electing directors to a board. The proxy, who is present, then has knowledge of the full slate of candidates and can make a choice on behalf of the individual who is entitled to vote but is unable to be present. A proxy may be for a prescribed period of time (a year, 3 months, a month, whatever), or it may be for only a specific occasion. That is usually specified in the document authorizing the proxy. Also, usually a proxy can be revoked by the individual entitled to vote.

There are a couple of problems with proxy votes, which is why some people don't like them. Unless the individual who is entitled to vote provides specific, written instructions to the proxy on exactly how to vote or on whom to vote for, the proxy may vote in any way he or she chooses. Hopefully, it will be in the interest of the person entitled to vote or close to how he or she would have voted, but it doesn't have to be. It's difficult to provide specific instructions when there are nominations from the floor since you don't know beforehand who the candidates will be. Perhaps you could provide instructions like, "vote for the the following individuals in this priority", or something like "in any case, you may not vote for the following individuals." It's not perfect, but it's better than no instructions at all.

Proxies can be, and sometimes are, abused. Usually, there is no limit to the number of proxies a person can hold. So, suppose another homeowner solicits five unspecified proxys from other homeowners that are not going to attend a meeting for an election. This individual now has six votes (five proxies plus his or her own vote) that can be voted in any way he or she chooses. For this reason, many people consider proxy voting to be unfair.

Proxy voting has its good points and its bad points. Each person has his or her own view on whether the good outweighs the bad or the bad outweighs the good.

Bruce, I'd have to agree that there are pro and cons to proxy voting, and each HOA faces its own scenario. For instance, we are having board elections in less than 3 weeks. I'm also in FL like the OP. Our proxy encourages voters to attend and alos gives instructions to mail or fax their proxy to the property managemnet co. if they don't plan or can't attend. We don't have a ballot per se. Board members are not seeking re-election. I took care of that (don't ask me particulars about this.) Our bylaws do not address annual meetings of the HOA at all since they date back to 1994 when developer had full control. Previous boards have done nothing to amend or revise our bylaws. But going back to our Proxy, I don't like the idea of giving the property manager or property management company unlimited number of votes through proxies. But again, there is nothing we can do to change that at this time. All I can do is try to collect as many proxies from neighbors, attend the annual meeting, and hope for the best.

Your thoughts.

Susanna,

In general, anyone may be designated as a proxy. I find it hard to believe that there may be something in Florida law or in your governing docs that require a proxy to be a specific someone.

Therefore, I don't think it would be a requirement to designate the property manager as the proxy. I don't see anything wrong with that, since anyone can be a proxy, and it's a matter best left up to the individual person entitled to vote. It's probably suggested more as a matter of convenience than anything else, and under the assumption that the property manager would likely be a "neutral" party and would vote wisely.

Given that a proxy can be anyone, I would be more inclined to designate someone I trust such as a close relative or friend as a proxy. The proxy shouldn't necessarily have to be someone else that lives in the community. If that is a requirement, then I would question its legality.

I might also be inclined to designate how the proxy is to vote, such as in the examples I gave in my previous post. It's not perfect, but it's more likely that the vote would be cast similar to how I would have voted.

Yes, I agree, it's a matter of convenience. And, yes there is provision for a substitute who most likely will be the current Secretary.

Bruce and Michelle,

I have seen on several ballots, especially when there is an amendment, that the ballot offers the Secretary of the association to be named the proxy designee. This works well where the association has a hard time acquiring a quorum, the Secretary then can cast all of the proxies as she sees fit if the ballot is worded that way. Some ballots allow the owner of the Proxy to check their vote but it is cast by the designee. This is why the use of proxies is sometimes not a clear cut system.

DonnaS, I agree with you. BUT we just had a special meeting
where proxy cards for casting a vote was sent out with the
HOA Secretary as the limited power of attorney. She then used
the proxies to also establish a quroum for the meeting. A proxy
needs to state the specific purpose given, which ours did. Misuse
of that proxy for any other use, I believe is a crime.
Edie

And here we have the result of Murphy's Law in regard to Proxies.

If anything can go wrong..............it will.

A comment,
Seems to again point out that all procedural processes should be worked out before the actual voting. In this case, it is a special meeting, which must have provided an advance notice to all members. That is the time to clarify how the voting will be done. If not provided with the notice of meeting, I would contact the Board and insist procedures for voting be included.

Susanna,
I would take strong exception to any mention of a specific person or office that could be assigned the vote. I know it is done all the time but having observed the apathy of owners in associations I think this little trick is just adding to the problem. Managing an association is a two way street and a 52 week/year job. Communications is not easy and the tendency to lead the members in specific directions should be avoided. I am convinced that the BOD do know more about what needs to be done and are more knowledagable than the single owner. However, since that is not a constant fact, the only fair recourse is communication and education. Can this be done? I'm not sure, but that should be the motivation, not a few BOD members pushing and shoving the masses to get the job done. I am also becoming more and more satisfied that even with good communications efforts, some folks are not going to respond, so, instead of a pure democratic process I am more willing to accept the leadership of a smaller number if I am convinced all this "leadership" has demonstrated they care enough. I know, it is not a logical conclusion but "it is what it is."

Also proxies need to have the close scrutiny of my "leadership" group and fairness must be maintained. If my "group" has done their communicating over the year, the need to "load" the proxy will not exist. The Board will be assigned all the votes they need and specific name suggestions will not be necessary. Inform the owners of how and why proxies are necessary in Board reports during the year.

And, Robert, conversely I would take strong objection to signing a proxy that did NOT designate to whom I give my right to vote. I want my vote in the hands of someone I have some modicum of knowledge will vote in a way consistent with my preferences and values.

MicheleD,
My reference is the suggesting by the Board (who else), that the owner assign their right to (in this case, the secretary), or anyother unnamed person. I suppose that agrees with what you said above. I also want more that a modicum of knowledge concerning a vote. As far as quorum is concerned, I am in favor of lowering the % required for a meeting to something realistic to the individual association. The evils of this are clear but anything is better than no meetings. As far as assigning a proxy for vote, be it election or specific issue, I don't like them, they get abused. Another consideration is for attentive and knowledgeable owners to to form a civic group and actively solicit proxies from members. I would buy into that if I were going to be absent at a meeting, but only if I had reason to support the effort.

Thank you all for the info. It kind of supports my thoughts as well. I think the best thing to do is lie low for the year and next year, since there will be 3 out of 5 spots available, flood my community for their votes. I lost this years election by 9 votes. I believe the proxy process was not handled properly to "fix" the election but I will try again next year.
Again, thank you everyone on a job well done.

?? what "hint" ??

I would like to get it, too. . . .

Seeking more advice on the legitimacy of our current BOD election procedures. Understand that if provided on our bylaws, our bylaws supersede FL statutes. Our bylaws state "Election to the Board of Directors shall be written by secret ballot. At such election the members or their proxies may case, in respect to each vacancy, as many votes as they are entitled to exercise under the provisions of the Declaration. The election may be conducted via mail...."

We just received a letter notifying us the election is to be conducted via mail. A mailed ballot (with cut-off date to send in) was provided and no proxies. Our annual meeting is a couple days later, where I assume the ballots will be counted.

Since the BOD notified us that the election is to be done by mail, does that mean the necessity of the proxy is rescinded essentially?

Are we in trouble here? Your advice is appreciated!

KM,

As Mary said, why would you need a proxy if the election is to be done via mailed in ballots. There is no need at all. But my real question is what is happening to your annual meeting where elections should be done. You need to look in your Articles of Inc to see the requirements for the elections as in reference to the annual meeting. This does not seem right to me. The annual meeting is required by State Statutes in Not For Profit Corp and 720 laws.

MaryA, I understand what you are saying, but sometimes after reading these laws repeatedly, I doubt my own "logical" interpretation. I wasn't sure if the mail-in ballots could be used to establish quorum if the bylaws state "The presence at the meeting of members entitled to cast, or of proxies entitled to cast...." I don't think quorum will be a problem because we only need 1/10th of membership and we have 84 homes. I was worried however, that just because we ASSUME there is easily going to be enough members to show at the annual meeting, shouldn't a proxy been provided in our mail voting package for quorum anyway? I realize you are saying the ballot could be used, but again, I didn't want to assume that because our bylaws do not state that. I've been asking a lot of questions, because I do worry that if everything isn't followed properly to the CCRs and FL Statutes, the whole election process may be challenged in the end and we start from scratch.

DonnaS, we received a newsletter in the mailed voting package, and the newsletter advised the annual meeting would be a couple days after the cut-off date provided on the mail ballot. They did not specify anywhere how the counting of votes would happen and I am ASSUMING they are doing it at that annual meeting. It's been confusing because our CCRs state voting by mail MAY be used. By sending us a mail ballot with cutoff date, that tells me nominations will not be taken from the floor at the annual meeting. (Bylaws state nominations MAY be taken from floor at annual.) How can this be okay when only the nominating committee chooses the 5 names for candidates (allowed in bylaws)? Where is the opportunity for someone to self nominate if they aren't someone already pre-selected by a suspicious BOD? A couple days ago my neighbor and I realized we did not get a ballot last year (can't recall annual meeting notice and see no newsletter in my records). Coincidence? I'm starting to think not!

Actually, a current BOD member who has seen compounding suspicions (not verified by me but piqued my interest and others in requesting official records especially financial) called us a few days before a BOD meeting. He felt the election was going to be a fixed election and power play for a few bad apples. Not sure if we handled it right, because a few of us showed at the BOD essentially demanding to self nominate ourselves. Afterwards (my fault, have learned now) when scruitinizing the bylaws I read for BOD self-nominating this MAY be accepted from the floor at annual meeting. So if we few Members had NOT showed up at that BOD meeting (agendas not posted with 24 hr notice - how would one know BOD was doing candidate selection?) and demanded to self-nom, only those selected 5 names would have went out with the mail ballot. Or can someone still self-nom at the annual meeting even if a mail ballot was sent out with cut-off date prior to meeting (an no proxies given so no opportunity to vote AT the meeting). Doesn't add up....

Also, They are way too many "theys" in this thread and the whole mess is becoming muddier and muddier, I can't tell the bad guys from the good guys and this "smoke" probably has some fire, but I for one, don't think I can help at this stage of the game. All I am doing is confusing the issue.

KM, One thing I will say is that your explanation of the process you are starting so far has been on track. There will be decisions and priorities have to be set. Also, your discovery that the deeper you scratch the more you uncover. All well withing the bounds of what normaly happens. So, get organized, elect spokepersons, and don't sweat the small stuff. Take your time, seek little victorys, chew small bites and soon you will see cracks starting to appear which allows you all to get your leg in the door. ALWAYS be smart, always know what you are saying, saying nothing is better than speculating.

Keep in mind at this point this could be just misundersatanding, extend a friendly hand and aways offer to help officially, keep good records, and keep positive......................FINALLY..................do this for your association.....any other reason will fail in the end.

Mary,
I may be off base in the end, i don't know. But right now I think if there are provisions in her documents that link Provies and quorums, use proxies. however it doesn't appear km is going to be given any say in the matter anyway. I certainly agree if the documents, (like yours declare) are devoid of "proxies", they don't need to be used, in fact, they are prohibited. That doesn't mean all proxies are void everywhere. Just an opinion on my part.

Mary,
I recall at the time AZ did this there was a man posting here that said it was going to happen, can't remember his name. Anyway I am all for it and I am also for counting Mail in ballots towards quorum.

But, as you say there are just so many differences when you say condo or HOA. I remember, I think, at this time there was a discussion to encourage association to lower the % needed for quorum. Our still stands at 66%, and any suggested reason I mentioned just sort of scared the Board at the time.

We don't use proxies, generally, but at any rate, we can only accept mail-in ballots and they can be used to make quorum as well.

Our docs only allow for mail-in voting and no in-person voting or nominations from the floor.

The first couple of years we did this (during and after transition), several people hand-carried their ballots in (I may have even been one of them) and we were told later by the attorney that technically those ballots could not have been accepted. All ballots are to be mailed, post-marked 5 days before the annual meeting, which is always the first Monday in March, and no ballot is to be opened before the meeting is called to order. They have to be opened, verified for eligibility and counted the night of the meeting.

Richard,

Perhaps you didn't read my previous messages. Proxies are not necessary to attain a quorum; mail-in ballots can accomplish the very same thing. Proxies are outlawed in AZ and mail-in ballots a requirement. I've not heard of any assn's that are unable to attain a quorum since this law went into effect several years ago.

IMO, neither quorum requirements nor voting %'s should be eliminated. If your assn has been having difficulties attaining a quorum I would suggest changing to the mail-in ballot requirement or you could make the requirement to vote in person or by mail-in ballot.

The mail-in ballots should be received by a certain date, usually 5 days prior to the meeting. Our PM counts the ballots as they arrive at their office and the results are reported at the annual meeting. Some assn's require that the ballots be opened and counted at the annual meeting. IMO, either procedure is acceptable. If you have a very large assn, counting the ballots at the meeting could take quite some time, so that should be taken into consideration.