Proxy voting policies

So our HOA or should I say our management company uses a very complicated and confusing proxy form. They list the candidates on the left side of the proxy and instruct the principal to make their selection for how they want their proxy holder to vote. Then at the bottom of the page it says that the proxy has to be received by the management company no latter than noon of the day of the annual meeting. In bold print below that it say that no proxies will be excepted at the meeting. No where on the proxy sheet or in our by-laws does it say that the proxy has to be submitted by the home owner.

So what I'm getting at is I'm running for the board of directors. I have spent the last week walking door to door (331 to be exact) talking to people and getting their support. I was told by our new property manager that it would be OK for me to except proxies from people to turn in for them. Now that I have 24 proxies and it's 2 days before the election and our former property manager is telling me that it is illegal for me to send in other home owners proxies. No where does it say this on the proxy form nor does it say anything in our by-laws. I contacted my attorney and she confirmed that it is not illegal.

Has anyone ever had any sort of problems like this? I realize that any responses are opinions and not any type of legal advice.

Thanks

Zach, time is short. Get the proxies in before the deadline. If there is no restriction on use of proxies and no limit on the number of proxies they should be accepted. If they are not ask to see the document allows the proxies to be denieghed.

Zach,

Being told different things by different people always happens. When ever someone tells me something without looking it up, I say that I need to explain this answer to others. I then ask "can you show me where in the regulations this is addressed? Otherwise, they might be back down here bother you."

This is a way to trust but verify the answer without calling them mistaken.

Sounds like you have things under control. Please keep us posted.

Tim

Thanks Joel and others,

I'm really gaining a lot of confidence that I will be successful. I faxed each proxy, individually, last night to the property manager. I intend to ask to witness the vote counting, so I can make sure and verify that the proxies I have submitted are counted. If I win the election, then I will not question the election, as the HO's wishes have been fulfilled. If I loose and the proxies are not counted, then I feel that I have no choice to challenge the election. I'm so ready for all this drama to be over. It amazes me what length others will go to to prevent HO's to be on their communities HOA boards.

Zach

I believe many CCRs require a "Voter Eligibility" list to be available for viewing at the election. Some of our more savvy homeowner use this list to figure out who are delinquent homeowners are.

Keep up the effort ... what I wouldn't give to have people "fighting" to be on the board in our community :-) We are lucky to get enough candidates.

This part of an email that I recieved from the current President of our HOA.

Proxy Votes
A) This was a decision (regarding votes collected by neighbors) that was made by the Board going back as far as 2 and a half years ago when we had two neighbors lobby for a particular position regarding community parking, then attempt to collect ballots and turn them in. These ballots were NOT accepted and a re-vote was required. Ever since this incident, this policy has been our standard operating procedure: NO VOTES COLLECTED BY NEIGHBORS WILL BE COUNTED AS LEGITIMATE. This would be especially true when the aforementioned neighbors are running for elected office.

The above statement or policy is not in our by-laws. Can a board have operating procedures that are not in the by-laws??

B) The Proxy forms themselves say plainly in bold lettering the following:
a. “For this proxy to be effective, it must be submitted to our community property manager as agent for the Marilyn Ridge HOA.
b. If you are unable to attend the meeting, please sign, date and return this Proxy to Gretchen Lough Omni Management Services, 4138 N. Keystone Avenue, Indianapolis, IN 46205 or via FAX to 317-541-0002,”
This clearly implies forms are to be mailed, faxed, or delivered in person by the homeowner directly to Gretchen Lough at Omni Management.
c. “NO PROXIES WILL BE ALLOWED TO BE TURNED IN AT THE MEETING”
So, as you can see, legitimate proxies are only to be accepted by Gretchen, and they can only be delivered by homeowners directly, and they must be received by the noon deadline on Thursday.

Why are HOAs concerned about proxies? Why, according to Mary, has AZ outlawed proxies? Why does CO Nonprofit Act allow proxies at association meetings and not at Board meetings?

I think the answer to all of these questions is that unlimited use of proxies can allow one (or a few) to control. Following is a solution which we recommended and the HOA amended their Bylaws to include. Note there is a limit of 4 proxies/lot and an official proxy form (which is mailed to each lot owner and individually identifies that lot).

4.5 Proxies.
At all meetings of the Association, each member may vote in person or by proxy. All proxies
shall be in writing and filed with the Secretary or designated agent of the Association at or before
the time of such meeting. An Owner may not revoke a proxy except by attendance at the
meeting, or by delivery of notice of revocation to the person presiding over the meeting of the
Association, or by subsequent appointment of another proxy. A proxy will be voided if it is not
dated; is not on an official proxy form; or purports to be revocable without notice. A maximum
of four (4) proxies are allowed for the Owner of each Lot. A proxy shall terminate ninety (90)
days after its date of execution.

If a Lot is owned by more than one Person, each Owner of the Lot may vote or register protest to
the casting of votes by the other Owners of the Lot through a duly executed proxy. If only one of
the multiple Owners of a Lot is present at a meeting of the Association or appoints a proxy, such
Owner is entitled to cast all votes allocated to that Lot. If more than one of the multiple Owners
is present, the votes allocated to that Lot may be cast only in accordance with the agreement of a
majority in interest of the Owners. There is majority agreement if any one of the multiple
Owners casts the votes allocated to that Lot without protest being made promptly to the person
presiding over the meeting by any of the other Owners of the Lot.

Zach,

Whether it's legal or not, it appears that according to your former PM, the board is only allowing a directed proxy which means the member indicates how he wants to vote. You've collected general proxies, meaning you are voting for the proxy giver. According to the former PM this type proxy is not allowed. Now the current PM has given you different info. Have the member received new proxies? If not then, IMO, you must abide by the instructions that are on the proxy that was mailed to the members, i.e. the member must indicate how he wishes to vote. Contrary to what the former PM says, I see no reason why you cannot collect the completed proxies of members and mail them in as long as the proxy has been completed by the individual member. If you're concerned that they won't be counted then just mail them separately. No one will know that they weren't mailed by the individual member.

The only way you can challenge the board decision is in a court of law. Do you want to spend a huge amount of money over an issue like this?

Well this has been a long trying week. To sum it all up for those just tuning in. The board and PM challenged me on turning in proxies for other people. At first they tried to argue that the by-laws stated that only the HO can turn in a proxy. When that failed, they challenged me by saying that because I was a candidate that I was not allowed to collect proxies and turn them in. Again, no such wording is in the by-laws. I turned in the proxies according to the rules on the proxy sheet and also the rules in the by-laws. Of course those are different. My lawyer sent a letter to the PM company and to the PM company lawyer. The PM company lawyers notified the PM and the board that they had to accept the proxies. We had the meeting, the proxies were accepted and between that and the votes cast at the meeting I and my running mate won.

Of course the out going board president had to take a jab at me. The president brought up right before the vote that the rules on casting proxies had been challenged by a candidate and legal counsel had to be sought. After the election was over a community member asked if legal fees were charged as a result of the challenge. Of course the PM (the bad one) spoke up immediately and said that 3-4 hours had to be spent and you know how much lawyers cost. The went ahead an said the a few hundred dollars was spent on the matter and the asked me in front of everyone if I would be paying the community back any of that money. ARE YOU KIDDING ME!!!!!

Zach -

Great News. It does an American proud.

I also agree with Joel. The outgoing Board could not figure this out on their own and sought out legal advise. Perhaps they should pay for it. Alas, it will come out of the operating budget as that is the price of running a business.

Tim

Not a chance. If the board had read the by-laws with out bias, then they would have come to the same conclusion that my self and the attorneys had. It really just shows what lengths people will go to keep others off the board.

Thanks again for every one's support. I'm so glad that I found this site and will be encouraging the other board members to check it out.

Zach

Roger,

From what I recall Zach saying, the old PM was giving wrong advice but the new PM said his proxies were OK. Perhaps they have already changed mgmt co's??? Don't know why both PM's were getting involved in this issue. Of course we all know that some boards don't listen to the advice being given to them by the PM or their attorney. So, we don't know if the PM made the call or was just parroting how the BOD said it must be done.

Zach,

I congratulate you and your efforts to bring about change. It's always a good sign when the members take steps to bring about change.

Perhaps the new PM will work out OK and you won't have to change mgmt co's. The new board will have to understand that the PM works for them -- the board runs the assn with the "assistance" of the PM, not the other way around.