PROXY VOTING

DanielL7 (Louisiana)
Posts: 17

Posted:

Proxy voting is allowed in our association as stated in the bylaws. The problem is abuse of the system.
Therefore, we are looking into other voting procedures such as the two envelope system. If anyone of your
organizations use this system or any absentee balloting system please send me a copy of your procedures.
We are also aware of following the changes in the byalws. I thank you for any assistance. Please send to [email protected]

Thanks,

MaryA1 (Arizona)
Posts: 7,043

Posted:

Daniel,

My HOA in AZ uses mail-in ballots, it's a state law. The BOD sends the required notice letter and includes a ballot and 2 envelopes. The ballot filled in and placed in the ballot which has the member's lot number of it (the inner envelope). The envelope containing the ballot is placed in the envelope that has the HOA's return address and mailed. Ballots must be returned by the date specified in the meeting notice letter. The Property Manager, with the assistance of her staff, opens and tallys the ballots. The winners are announced at the annual meeting and in the next newsletter.

Since your bylaws state member may vote by proxy the BOD cannot deny them that right. Even though the bylaws might say the members "may" vote by proxy this means the choice is up to the individual member not the BOD. The only way to change this is to amend the bylaws. In the meantime the BOD must allow proxy voting. The best way to do this is to include a proxy form in the notice letter for the annual meeting. IMO, mail-in ballots are the best procedure manly because it eliminates the need for proxy's.

KW3 (California)
Posts: 146

Posted:

Mary,

Quote:

My HOA in AZ uses mail-in ballots, it's a state law. The BOD sends the required notice letter and includes a ballot and 2 envelopes. The ballot filled in and placed in the ballot which has the member's lot number of it (the inner envelope). The envelope containing the ballot is placed in the envelope that has the HOA's return address and mailed.

In CA, the election is required to use "secret ballot" and Proxy voting should be adopted if the Bylaws allows as you mentioned. As the secret ballot required, we do not put any mark/sign on the first (inner) envelop that seals the secret ballot, but set out a space on the second (outer) envelop (which holds and seals the first envelop) for the owner to identify his/her name and address and their signature, so the inspector of election can verify/certify the ballot is entered from a qualified owner owning the voting power. After the inspector check off the voting owner from the sign-in sheet, the unmarked inner envelop, unopened, is placed into a voting box/pile, so the ballots remain secret.

Quote:

The Property Manager, with the assistance of her staff, opens and tallys the ballots.

The associations, in CA, have to select one or three inspector of election and they must be independent third parties. Unless with some special condition, the management company/PM apparently is NOT a qualified independent third party. But a member (owner) of the association can be an inspector provided he/she is not a BD or candidate, or is not related to any BD or candidate.

Quote:

IMO, mail-in ballots are the best procedure manly because it eliminates the need for proxy's.

All ballots can be either mailed-in or delivered to the inspector in other ways. But how it can eliminate the need of proxys remains unclear to me. IMO, proxys is good for making the quorum for the meeting and so for the election, also a way to encourage people to vote/participate (maybe "passively" though). And I see no flaw to it if done right. Why eliminate it?

MaryA1 (Arizona)
Posts: 7,043

Posted:

KW,

The mail-in ballots count toward the quorum. Unless it's a directed proxy, assigning your proxy to someone else does not allow you to participate in the election. The only people who usually assign their proxy are the one's who, for whatever reason, are unable to attend the meeting. By using a mail-in ballot everyone can exercise their right to vote whether they are able to attend the meeting or not.

Why eliminate proxys? Because alot of fraud can occur with the use of proxys. For this reason, AZ prohibited proxys a number of years ago and now requires mail-in ballots.

RichardP13 (California)
Posts: 1,767

Posted:

KW3,

Outside of electing Directors, all other Secret Ballot elections such as amending governing docs, removing Directors, granting exclusive use of common area, annual and special assessments require a specific number for approval such as a majority of Voting Power, 51% 66 2/3% and so on. As such you have built in quorum requirements because of the number to approve, therefore no proxy is needed just a filled in ballot. If you were going door to door to gather proxies, why not just have the owner fill out a ballot.

As far as proxies for the election of Directors, just eliminate the need for a quorum and run the elections as County elections are run, majority wins. Associations win only have to conduct the elections once, never having to worry about adjourning to a new meeting with a reduced quorum. Makes more sense doing it this way. But, you have to get your Bylaws amended in order to do this. I am working with a California Assemblyman to make changes to both Civil Code and Corporation Code to eliminate the need for quorum in elections at HOA's.

GlenL (Ohio)
Posts: 5,491

Posted:

Daniel, you also need to check the LA HOA regulations (if any) and the State's non-profit corporation regulations if either of those specifically allows proxies you may not be able to do away with proxy voting. For years we used directed proxies but some homeowners wouldn't vote for fearing their vote or lack of vote would get back to a specific candidate. A few years ago we changed to include a sealed ballot with the proxy and a stamped return envelope, which seems to work.

Proxy for the 2010 Happy Daze Annual Homeowners Meeting

Please fill out and mail the proxy and ballot even if you plan on attending the meeting in person. This will allow the meeting to take place even if circumstances prevent you from attending. When you sign in at the meeting this proxy and ballot will be destroyed and you may vote as you see fit.

__________ I the undersigned homeowner, will not be able to attend the Annual Homeowners Meeting on February 15, 2010 but authorize Jane Doe as secretary of the Association to accept my proxy to allow the meeting to take place and to submit my official ballot to the Association.

__________ I the undersigned homeowner, will not be able to attend the Annual Homeowners Meeting on February 15, 2007 but authorize ____________________________ to be my proxy and to act in my place in all matters requiring a vote.

NOTE: You may revoke your proxy at any time in writing prior to February 15, 2010 or by appearing in person at the meeting. Only one person may vote per unit even if there are multiple owners of the unit.

Homeowner ____________________________________ (Please Print)

Address ________ Happy Daze Dr. Unit Number ________
Cincinnati, Ohio 00000

Telephone Number ____________________

Signature _________________________________________ Date _____/_____/2010

=====================================================================
Instructions for voting:

1. Fill out and sign the proxy form.
2. Fill out the ballot form.
3. Place only the ballot form into the envelope marked "Official Ballot".
4. Place the envelope marked "Official Ballot" and your signed proxy form in the larger stamped envelope addressed to U & Me Management and mail.

When U & Me receives your vote they will staple your proxy to the outside of the official ballot envelope and bring it with them to the meeting. If there are enough members either in person or by proxy to allow the meeting to continue; the official ballot envelope will be detached from the proxy and given to the persons responsible for counting the election.

Only the persons responsible for counting the election may open the official ballot envelope and the ballot will be added to those cast in person and counted. If there are not enough homeowners either in person or by proxy to constitute a quorum (35) and the election cannot be held the official ballot envelope and its contents will be detached from the proxy and the ballot will be destroyed without being opened.

Studies show that 5 out of 4 people have problems with fractions

KW3 (California)
Posts: 146

Posted:

Richard,

Quote:

As far as proxies for the election of Directors, just eliminate the need for a quorum and run the elections as County elections are run, majority wins... But, you have to get your Bylaws amended in order to do this.

It makes sense to do so (amend the bylaws), but the problem is still there that it requires majority of the members (at least?) to vote approving the amendment! I found a strange solution to resolve the quorum issue without amending the quorum requirement in the bylaws, but wonder if it is legal/legitimate. The solution is this: set and approve an "Election Rules" for electing (and removing) board directors that first indicates "in the event of conflict between the rules and the Association's governing doc, these rules govern." (there is the quorum requirement in the bylaws) and then go on setting provisions that require neither a quorum nor a minimum number of ballots (votes) to make the election valid. I assume that this "odd" election rules need only approval from a resolution of the BOD. Is this kind of ER legitimate and practical? Thanks for comments.

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By KW3 on 07/29/2010 4:37 PM
Richard,

As far as proxies for the election of Directors, just eliminate the need for a quorum and run the elections as County elections are run, majority wins... But, you have to get your Bylaws amended in order to do this.

It makes sense to do so (amend the bylaws), but the problem is still there that it requires majority of the members (at least?) to vote approving the amendment! I found a strange solution to resolve the quorum issue without amending the quorum requirement in the bylaws, but wonder if it is legal/legitimate. The solution is this: set and approve an "Election Rules" for electing (and removing) board directors that first indicates "in the event of conflict between the rules and the Association's governing doc, these rules govern." (there is the quorum requirement in the bylaws) and then go on setting provisions that require neither a quorum nor a minimum number of ballots (votes) to make the election valid. I assume that this "odd" election rules need only approval from a resolution of the BOD. Is this kind of ER legitimate and practical? Thanks for comments.

KW3,

You can't add Election Rules that will supercede the Bylaws or CCR's. There is a hierarchy to the governing docs and Rules and Regulations are on the bottom. Besides you are attemptinmg to make changes to your Bylaws and the Bylaws state that they can only be amended by s specific percentage of the voting power. So the answer is you can't make the type of change you propose.

KW3 (California)
Posts: 146

Posted:

Richard,

Quote:

You can't add Election Rules that will supercede the Bylaws or CCR's. There is a hierarchy to the governing docs and Rules and Regulations are on the bottom.

This is exactly what I thought. Can you verify that this "hierarchy" is a formal law/legal term or just a common recognition/perception from general public?

Quote:

... So the answer is you can't make the type of change you propose.

Maybe I misstate something, but I didn't propose changing anything in bylaws or other doc. The solution I mentioned is to set a new Election Rules that in itself states it supersedes the governing doc. Anyway, this Election Rules would become illegitimate as it breaks (or reverse) the hierarchy.

Actually and surprisingly, this I-called "solution" has been adopted by my HOA years ago: the legal counsel made a proposal and provided a draft of Election Rules (together with some templates for the Resolution of adopting the ER, nomination form, ballot, etc.) to the Board and the MC claimed that the Board had approved it when I questioned the Board/MC that how come the inspector of election was always assumed by the MC, which I deem is not an independent third party. They show me the draft which has a provision that the MC can be appointed to assume the inspector. I questioned them that the copy they sent me is just a draft and requested they send me a copy of the real approved one, the minutes of the board meeting that the ER was approved, and also the Resolution of adopting the ER (signed by the Secretary). Again they sent me a copy that is exactly the same format/content as the draft (there is even the same "Rev xx-yy" mark as on the draft) and a typed minutes of the board meeting without anyone's signature. I receive no the "Resolution of adopting the ER". I read the "Election Rules" and right in the beginning introduction part, it states that "in the event of conflict between the gov doc and these rules, these rules govern." Also in the later part of the ER, it states that there is no quorum requirement on the election of BDs and there is no minimum ballots (votes) requirement for election to be valid. There are other strange rules which violate the bylaws (e.g., the qualification of BDs: Board members need NOT be members of the Association).

The funny thing about this is that they claim that they have been following the ER since it was approved, but when I question them about what happened to last year's election, they told me that there was no election because the required quorum was not present! And so no election, no election report/record, no annual meeting, no meeting minutes, no nothing; even the few turned-in ballots were discarded because there was no election and now there is no ballots for inspection! Can anyone believe this is actually happening?

Welcome to the amusement HOA! .

RichardP13 (California)
Posts: 1,767

Posted:

KW3

Based on what you have stated, your Election Rules are invalid.

First, you CANNOT change the requirement for quorum without changing the Bylaws and getting owner approval

Second, there is no law requirement for qualifications of Director, it is what is in the Bylaws, so you CANNOT have election rules that conflict.

There were major changes implemented in July 2006 with were incorporated into the Davis Stirling Act (Civil Code). One of the changes required that HOA develop Election Rules based exclusively on Section 1363.03. I have attached Section 1357.100 which states that a rule must not conflict with governing law, Articles of Incorporation, CCR's, or Bylaws.

Civil Code §1363.03. Election Procedures, Secret Ballots, Inspectors of Election.
(a) An association shall adopt rules, in accordance with the procedures prescribed by Article 4 (commencing with Section 1357.100) of Chapter 2, that do all of the following:

1357.110. An operating rule is valid and enforceable only if all of the following requirements are satisfied:
(a) The rule is in writing.
(b) The rule is within the authority of the board of directors of
the association conferred by law or by the declaration, articles of
incorporation or association, or bylaws of the association.
(c) The rule is not inconsistent with governing law and the
declaration, articles of incorporation or association, and bylaws of
the association.
(d) The rule is adopted, amended, or repealed in good faith and in
substantial compliance with the requirements of this article.
(e) The rule is reasonable.

BrianB (California)
Posts: 2,820

Posted:

how do you abuse proxy voting?

KW3 (California)
Posts: 146

Posted:

Richard, Thank you so much for the needed info and advice. I have big impression that you have a very strong background in legal and laws. So I am really curious about your position in your HOA? As you have told you are neither the president nor a board member of your HOA, I reckon that at least you are a member of the HOA? Are you also the legal counsel or the MM of the association? It seems you carry a heavy duty/mission of the Association.

(Don't know if this is ok to ask another help here.) I wonder what is (are) the fundamental principle(s) for maintaining the books and records of a HOA? When you request to inspect the documents, how do you verify the validity/authenticity of them? Should all the doc have a legitimate signature dated on them to be official and valid? Examples: the Minutes of board/member meetings, annual budget, Election Rules, etc. My concern is this: Except the declaration, bylaws, the incorporation and a few other doc, almost all other record doc I requested/received from the MC (the bookkeeper) are all without any signature/dated. How do I know these are the official/genuine record of the association as anyone can type up the doc without authorization and place it in the association's file as a record. I can see that a previous meeting minutes is approved shown in the next meeting's minutes, but how do I know the minutes I inspect is the one that has been approved by the board if there is no dated signature on it? The same for the Election Rules -- how do I know if it is the ER that was approved by the board if there is no dated signature on it? (even there is a separated signed/dated resolution of adopting the Rules)

KW3 (California)
Posts: 146

Posted:

Richard, Thank you so much for the needed info and advice. I have big impression that you have a very strong background in legal and laws. So I am really curious about your position in your HOA? As you have told you are neither the president nor a board member of your HOA, I reckon that at least you are a member of the HOA? Are you also the legal counsel or the MM of the association? It seems you carry a heavy duty/mission of the Association.

(Don't know if this is ok to ask another help here.) I wonder what is (are) the fundamental principle(s) for maintaining the books and records of a HOA? When you request to inspect the documents, how do you verify the validity/authenticity of them? Should all the doc have a legitimate signature dated on them to be official and valid? Examples: the Minutes of board/member meetings, annual budget, Election Rules, etc. My concern is this: Except the declaration, bylaws, the incorporation and a few other doc, almost all other record doc I requested/received from the MC (the bookkeeper) are all without any signature/dated. How do I know these are the official/genuine record of the association as anyone can type up the doc without authorization and place it in the association's file as a record. I can see that a previous meeting minutes is approved shown in the next meeting's minutes, but how do I know the minutes I inspect is the one that has been approved by the board if there is no dated signature on it? The same for the Election Rules -- how do I know if it is the ER that was approved by the board if there is no dated signature on it? (even there is a separated signed/dated resolution of adopting the Rules)

RichardP13 (California)
Posts: 1,767

Posted:

KW3

I am neither Board Member, Property Manager or legal counsel to my Association, just a paying member. I am also pursuing a certification as a CMCA (Certified Manager of Community Associations).

My involvement with my HOA came last year. I ran for a seat and the attorney improperly canceled the election, not allowing the members present in person to adjourn to a second meeting with a reduced quorum as stated and allowed in our Bylaws. So a few homeowners went about the task of amending our Bylaws to eliminate the need for quorum, setting qualifications for candidates and setting ground rules for which the Association should be properly run.

The election to amend the Bylaws has begun. After the first week we have 62 ballots turned in, and volunteers from our Events Committee will be going door to door this weekend and next to get the rest. We need 162 affirmative votes to pass and our goal is 250. We have a community of 317 single family homes. Once the Bylaws are approved, we will conduction our Annual Meeting and elect a new set of Directors, which we have a group ready to run now. If all goes as planned, the PM and legal counsel will be fired at the first meeting. We have tentative replacements for them already. Both the PM and legal counsel forgot they represent the Association and have only represented the misguided efforts of a unqualified and uneducated Board.

As far as your questions for accurate copies of Association docs, here is what I know. Homeowners in HOA are entitled to inspect Association records per California Civil Code 1365.2 and Corporation Code 8330 and 8333. Election Rules should have gone through a resolution process. Minutes should be signed and dated once they were approved by the BOD at a noticed meeting.

With the help of a reliable and ethical PM firm a educated BOD can operate their Association like a successful corporation.

KW3 (California)
Posts: 146

Posted:

Richard,

Quote:

I am neither Board Member, Property Manager or legal counsel to my Association, just a paying member. I am also pursuing a certification as a CMCA (Certified Manager of Community Associations).

Ok, now I see where you stand and good you do to your community. I like to wish you the best for becoming a CMCA soon (and dream to have you serve to our HOA).

Quote:

The election to amend the Bylaws has begun. After the first week we have 62 ballots turned in, and volunteers from our Events Committee will be going door to door this weekend...

I see you must work/perform on this task with great effort and efficiency and great results are even foreseeable now! My question come again: Is your "Events Committee" under the BOD or outside of the BOD? If it's outside of the BOD, how does it work to accomplish its mission/goal "legitimately"? Is the committee allowed to be formed and to act lawfully under the Bylaws or under the state law? What law can this kind of committee act accordingly?

Quote:

Once the Bylaws are approved, we will conduction our Annual Meeting and elect a new set of Directors, which we have a group ready to run now.

Glad to see your community have lot volunteers and willing members to share the burden. The first big problem of my HOA is the lack of volunteers (not to run the association, but just to participate, e.g., to vote, etc.) Oh, God save our HOA.

Quote:

If all goes as planned, the PM and legal counsel will be fired at the first meeting. We have tentative replacements for them already.

Are these already in your plan/schedule? Have you already reviewed the PM contract and sure you can fire the PM any time? I checked our MM contract and it was set and signed 1984! It's a one-year term, but "automatically renew every year"! unless canceled in writing by either party 60 days prior to expiration date. The contract has never been reviewed/amended/changed for 26 years! According to the contract, we can only cancel it in writing 60 days before the expiration date. Do we have any cause to fire them other than canceling the contract?

Quote:

Both the PM and legal counsel forgot they represent the Association and have only represented the misguided efforts of a unqualified and uneducated Board.

This is very true and a case of our HOA.

Quote:

... Election Rules should have gone through a resolution process. Minutes should be signed and dated once they were approved by the BOD at a noticed meeting.

This is exactly what I thought. Thanks for confirming.

Quote:

With the help of a reliable and ethical PM firm a educated BOD can operate their Association like a successful corporation.

This is ideal, if hard to achieve. I hope ...

RichardP13 (California)
Posts: 1,767

Posted:

KW3

The PM will be fired for cause which only needs 30 day notice.

Our Association has several committees, Web Site, Finance, Landscape, Security, Safety, ARC, Neighborhood Watch and Event committees. The only efficient one is the Event, why, no Board Member on the Committee. All committee are sanctioned by the BOD and each has its own charter. We will shift some of the volunteers from the Event committee to other committee and get them running more efficiently. There are ways to get volunteers and more importantly, keep them. Not difficult to do.

KW3 (California)
Posts: 146

Posted:

It sounds like your Event committee is under the BOD, so it can operate legitimately according to the gov doc. But, I assume the committee members are appointed by the Board and they don't have to be BDs, so how can you get the committee members work "against" the Board that has the power to appoint/dismiss the committee members? Very interested to hear your answer. (BTW, are you the chair or a member of the committee?)

RichardP13 (California)
Posts: 1,767

Posted:

KW3

In mid 2009, a few people, my wife included got together the idea of an events committee to help bring the committee of diverse individuals and families together. They went to the Board and got approval and a budget of $4200 a year. Since August of 2009 they have put together 5 events with approx 100-130 people in attendance at each event. Their last event was a Summer Luau with 110 of the communities adults attending.

I am not a member of the committee, my wife is, I just help when needed. As far as working against the Board, getting the Bylaws passed is a community event, nothing sinister. We haven't had ballots opened for the past six years. Once this is passed, we will no longer have that problem. Any Association can do what we are doing. Just takes a few people that know how to organize.

KW3 (California)
Posts: 146

Posted:

Richard,

Quote:

...Election Rules should have gone through a resolution process...

What is exactly the "process" of a resolution? Does it require sending the draft to owners (members) for 30 days review before the board can approve it? Is that 30 days' member review a "fixed" requirement? Can it be 10 days or 60 days?

Thanks for help.

MaryA1 (Arizona)
Posts: 7,043

Posted:

KW,

A resolution is really a written motion therefore it would only require a majority vote of the BOD. Once approved it then becomes a rule and should be included in the HOA's Rules & Regulations and sent to all members of the assn. Unless your gov docs and/or state law require rules to be sent to the members for their review b/4 adoption by the board, then this does not have to occur.

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By KW3 on 08/01/2010 4:21 PM
Richard,

...Election Rules should have gone through a resolution process...

What is exactly the "process" of a resolution? Does it require sending the draft to owners (members) for 30 days review before the board can approve it? Is that 30 days' member review a "fixed" requirement? Can it be 10 days or 60 days?

Thanks for help.

Attached is a sample resoltion

📎 Attachments (1):

📄181181995671.pdf(19 KB)

KW3 (California)
Posts: 146

Posted:

Richard,

As Mary suggested that "... Unless your gov docs and/or state law require rules to be sent to the members for their review b/4 adoption by the board, then this does not have to occur.", I'll find out if it is required in our gov doc, but can you tell if this "prior review" requirement is in CA State law? Thank you for help.

I am attaching a sample of Resolution for adopting ER:

📎 Attachments (1):

📄181455621154.pdf(78 KB)

RichardP13 (California)
Posts: 1,767

Posted:

KW3

Resolutions can be a number of things of which some may not need to go the the Members. The sample you attached is from the update to the Davis-Stirling Act of 2006 in which HOA were instructed to come up with Election Rules consistent with Section 1363.03. A resolution can be a p[rocedure or procedures on how the Board will operate or conduct business. If the Board is amending the Rules and Regulations that is a different stories. There are strict rules on the correct procedures.

KW3 (California)
Posts: 146

Posted:

Richard,

Quote:

Resolutions can be a number of things of which some may not need to go the the Members. The sample you attached is from the update to the Davis-Stirling Act of 2006 in which HOA were instructed to come up with Election Rules consistent with Section 1363.03. A resolution can be a p[rocedure or procedures on how the Board will operate or conduct business. If the Board is amending the Rules and Regulations that is a different stories. There are strict rules on the correct procedures.

Setting an Election Rules to meet state law requirement is NOT an amendment of the rules and so it is not required to have a notice (review) to members b/4 approval by the board? Am I taking this correctly? Thus The "Whereas the proposed new election rules were distributed to all members at least thirty days before ..." is of no need being stated in the resolution?

(p.s., Does anyone know how to edit your own posts, delete attachments... on this board/forum?)

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By KW3 on 08/02/2010 6:07 AM
Richard,

Resolutions can be a number of things of which some may not need to go the the Members. The sample you attached is from the update to the Davis-Stirling Act of 2006 in which HOA were instructed to come up with Election Rules consistent with Section 1363.03. A resolution can be a p[rocedure or procedures on how the Board will operate or conduct business. If the Board is amending the Rules and Regulations that is a different stories. There are strict rules on the correct procedures.

Setting an Election Rules to meet state law requirement is NOT an amendment of the rules and so it is not required to have a notice (review) to members b/4 approval by the board? Am I taking this correctly? Thus The "Whereas the proposed new election rules were distributed to all members at least thirty days before ..." is of no need being stated in the resolution?

(p.s., Does anyone know how to edit your own posts, delete attachments... on this board/forum?)

KW3

The first part of Section 1363.03 says that Association shall (must) adopt rules in accordance with (in this case) Sections 1357.100-1357.150 of the the Civil Code. So the rules adopted after July 1, 2006 should have followed the procedures set forth in Section 1357.130 and notify the Members of the new changes to the law and how they were being implemented in their own Association. The resolution is only a way for the BOD say they have voted to take action and keep part of the official records of the Association.

Civil Code §1363.03. Election Procedures, Secret Ballots, Inspectors of Election.
(a) An association shall adopt rules, in accordance with the procedures prescribed by Article 4 (commencing with Section 1357.100) of Chapter 2, that do all of the following:

KW3 (California)
Posts: 146

Posted:

Thanks, Richard.