Proxy voting policies > HOA Forum

Unanswered

Active Topics

Forums

Forums > Homeowner Association > HOA Discussions

Subject: Proxy voting policies

Prev Next

You are not authorized to post a reply.

Author

Messages

ZachR
(Indiana)

Posts:32

03/16/2010 7:03 PM
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

TimB4
(Virginia)

Posts:3247

03/16/2010 7:43 PM
Zach, The type of proxy form your Association is using is called a directed proxy. This type is perfectly legal and, in my opinion, better then a general proxy as it truly shows what the member intended to vote for. It would be illegal for you to sign the proxy statement but not to turn them in. However, your Association must be able to verify the proxy came from the member. If there is a signature and a lot number on the proxy form that should be enough. If there is no signature on the form, it sounds like the Association was using the mail to verify who the proxy came from (in my opinion, a very bad idea). The main issue is to have the proxies turned in. If they say that they can't accept them ask to see the law that says it's illegal. If they still won't accept them, have them sign a statement that the proxies were presented but rejected based on this issue. Bring a witness (other than a family member) with you when you turn them in. If they refuse to sign such a statement have the witness write a statement of what happened, you should also get the name of everyone who was in the office at the time. At the meeting and prior to the election, challenge the refusal of accepting proxies based on applicable laws. If you don't win you will then have a choice to officially challenge the election in court. If you choose to challenge you will then have plenty of documentation supporting your case. Indiana Condo laws and HOA laws are silent on proxies. IN corporate laws allow proxies but defer to the corporations governing documents. If your governing documents are silent, then the following link will be useful: IC 23-17-11-6 (Title 23, Article 17, Chapter 11, section 6) Vote by Proxy is the law on proxies for Indiana Non-Profit Corporations (scroll down the page after clicking on the link). Hope this helps, Tim

RogerB
(Colorado)

Posts:4647

03/16/2010 7:45 PM
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.

ZachR
(Indiana)

Posts:32

03/16/2010 7:56 PM
Tim, thanks for your reply. To add a little more info. The proxy states that you can either mail or fax the proxy to the management company. My attorney told me to go ahead and fax the proxies is, as the annual meeting is Thursday. I faxed each proxy separately tonight. I stapled that fax confirmation sheet to each individual proxy. My attorney is going to be faxing a letter to both of the property managers as well as the HOA attorney advising them that there is nothing in our by-laws or in Indiana code that states that the home owner is the only one that can send in the proxy. I really hate that it has to come to this, but I feel that this is the only way for us to have a fair election. Our management company leaves a lot to be desired. Each time I have talked to them over the past 2 weeks they tell me something different. Thanks

TimB4
(Virginia)

Posts:3247

03/16/2010 8:19 PM
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

JoelM1
(Pennsylvania)

Posts:60

03/17/2010 8:24 AM
Zach, This is deja vu for me. I was in what appears to be the exact situation you are in. My HOA was dead set against having me on the board. They bad mouthed me, and did everything possible to prevent me from be elected. The previous election I went door to door an gathered proxy votes (that were all signed) and turned them in at the annual meeting/election. I had just moved in so I only had a few days to gather votes. I was a few short. This last election, the board knew I would try again so they thought they would be smart and say that all proxy votes must be mailed in. To me, all that meant was I needed to buy some stamps and envelopes - I guess they did not think of that. I still went door to door (300 homes) gathered signed proxies, placed them in pre-addressed envelopes and mailed them in for people. I won by a landslide despite the board's best efforts to get people not to vote for me (which is a story unto itself). They decided to try and say that the votes did not count because the proxy votes were not placed in the mailbox by the person making the vote. I found that pretty comical. Finally, a decent guy on the board told the other board members that I won the election fair and square and to accept it. In the end, I was elected to the board. I have been working very hard in my position, and have accomplished many things. I have had no issues with other board members and we all get along fine (despite most of them hating me So, in my case there was an attempt made to say that proxy votes that were not put in the mailbox by the person casting the vote should not count. My 6 year old is capable of understanding why this rule cannot be upheld. I think you are in a similar situation. It makes no difference of faxes or mails in the proxy - in theory there is no way to even know. The signature and vote is all that matters.

ZachR
(Indiana)

Posts:32

03/17/2010 9:52 AM
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

JoelM1
(Pennsylvania)

Posts:60

03/17/2010 10:41 AM
Zach, One thing that they did in my case was to find every possible person that was behind on dues, or in some kind of other violation and throw out their vote. This is allowed per our bylaws, but I had no way of knowing whether they targeted just the people that voted for me or all votes.

DeeS1
(Michigan)

Posts:223

03/17/2010 11:18 AM
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.

ZachR
(Indiana)

Posts:32

03/17/2010 11:28 AM
Posted By DeeS1 on 03/17/2010 11:18 AM 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. The funny thing is there are 2 open spots and 3 people running. My self and another gentlemen are teamed up and running together. The 3rd guy is already and appointed board member, but has said that he agrees with me on the proxy issue and does not see a reason for the board or management company not to allow the votes to be counted. "Voter Eligibility" list, what it that ;). Our board does not even have people sign in at the annual meeting correctly.

ZachR
(Indiana)

Posts:32

03/17/2010 6:20 PM
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.

JoelM1
(Pennsylvania)

Posts:60

03/18/2010 6:21 AM
Zach, We had the same exact wording on our proxy ballots. You are in the same situation as I was - you have a board that could care less that the members of the association have chosen to vote for you. It is more important for them that you are not included as part of their 'clique' than it is for the will of the members of the association to be followed. If your board did such a great job, than it should not have been so easy for you to get votes. This statement is absolutely ridiculous: "NO VOTES COLLECTED BY NEIGHBORS WILL BE COUNTED AS LEGITIMATE" 1) As you say, is this a by-law? Is it a rule that was voted on? 2) What is a neighbor? As far as I know the person that lives next to you is your neighbor - everyone else is not. 3) Can you have a friend gather votes for you that does not live in the community because he is not a "neighbor?" 4)If the proxies are supposed to be mailed or faxed in how is it possible to know who "gathered" the votes (that is assuming we even know what "gathering a vote" means). What really po'd me, and I am betting it is the same in your case, is that I took the trouble to go door to door (in sweltering heat) and talk to each community member, listening to their concerns and explaining to them what I think I can do to make the community better. The sitting board members, who were up for reelection (against me) did nothing of the sort. They relied solely on the power of the board to bad mouth me and influence the voting. Please do not give in on this. You have them on the ropes and they know it. They will be faced with a choice of giving in and letting you into their 'club' or doing something that they know will expose them as elitist and a dictatorial group of people that they are.

RogerB
(Colorado)

Posts:4647

03/18/2010 9:24 AM
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.

JoelM1
(Pennsylvania)

Posts:60

03/18/2010 10:26 AM
RogerB, The issue being discussed is really about the submission of the proxies. If proxies are to be mailed in or faxed in, is it valid to say that the proxy must be mailed or faxed in by the person casting the vote. It is a silly thing to even question, but my particular board tried to void signed and dated legitimate proxy votes because they determined that the person who signed the proxy was not the one who mailed it in. In the end they came to their senses and realized they were being foolish by trying to discard these votes.

MaryA1

Posts:0

03/18/2010 11:07 AM
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?

TimB4
(Virginia)

Posts:3247

03/18/2010 5:39 PM
Posted By MaryA1 on 03/18/2010 11:07 AM 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. Mary, Zach didn't say he collected general proxies. He said, he went door to door and collected the proxy form sent by the HOA from the member after the member completed the form. As I understand the issue presented by Zach, the form itself isn't in question. It's the delivery method and who is delivering it that is in question. Tim

ZachR
(Indiana)

Posts:32

03/18/2010 6:37 PM
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!!!!!

JoelM1
(Pennsylvania)

Posts:60

03/18/2010 8:32 PM
Zach, Excellent news. I am 100% positive that you worked harder than any other candidate and fully deserved victory. How dare the outgoing member ask if YOU were going to pay back the legal fees. It was THEM that required legal advice in interpreting something that the average 6 year old could understand. Arrogant, immature, pompous, elitist the kind of people that give HOA boards a bad name.

TimB4
(Virginia)

Posts:3247

03/18/2010 10:25 PM
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

MaryA1

Posts:0

03/19/2010 8:43 AM
Zach, Congratulations! Regarding the out-going Pres remark, I hope you countered with, "Are you kidding? It was the board's mistake not mine. So, may I ask, are YOU going to pay the bill?" Good luck with your new job!

ZachR
(Indiana)

Posts:32

03/19/2010 9:06 AM
Posted By MaryA1 on 03/19/2010 8:43 AM Zach, Congratulations! Regarding the out-going Pres remark, I hope you countered with, "Are you kidding? It was the board's mistake not mine. So, may I ask, are YOU going to pay the bill?" Good luck with your new job! 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

RogerB
(Colorado)

Posts:4647

03/19/2010 9:07 AM
Posted By MaryA1 on 03/19/2010 8:43 AM Zach, Congratulations! Regarding the out-going Pres remark, I hope you countered with, "Are you kidding? It was the board's mistake not mine. So, may I ask, are YOU going to pay the bill?" Good luck with your new job! I think the management company should have given better advice to the Board Do you think the MA needs to be replaced?

MaryA1

Posts:0

03/19/2010 10:22 AM
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.

ZachR
(Indiana)

Posts:32

03/19/2010 1:20 PM
Posted By MaryA1 on 03/19/2010 10:22 AM 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. The two PM's are from the same company. The one that was against the proxies has been our PM for the past 3 years. The MA is making some internal changes and with that we are being assigned a new PM. The old PM said that she was there to help the new PM make the transition. I think it was rather that she has made the issues in our community and the proxies personal. In fact at the meeting last night she even made her own personal comments toward me regarding some of the changes that brought up in my campaign. The whole proxy issue came down to the board had adopted policy in the past in regards to proxy voting, but never amended the by-laws. They were to stubborn to admit that if it is not in the by-laws it has not merit. Now we will move on and become a better and friendlier community.

MaryA1

Posts:0

03/20/2010 8:23 AM
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.

You are not authorized to post a reply.

Forums > Homeowner Association > HOA Discussions > Proxy voting policies