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Subject: Is a mailed out ballot required for votes?
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BrentS5
(North Carolina)

Posts:41


07/05/2018 9:53 AM  
Team,

I am a POA president holding a vote soon. I notified every member I have addresses for 35 days in advance. Bylaws say minimum of 30 days.

I included the phrase you must vote in person or designate a proxy to vote on your behalf, listed my phone number to call for questions, listed the address to mail designated proxy along with your signature, and I listed every item we would be voting on.

I have one member stating that I must send out a ballot so the remote owners of vacant lots can fill out their votes, designate a proxy, and sign their name.


I do not have a problem mailing out a ballot. However, nothing in the bylaws says that I have to. It simply states I must inform the owners what is going on, when/where it is going on, and that they can designate a proxy to vote on their behalf.


Is there an official voting form / proxy form that I must send out 30 days in advance? Can I send out a ballot form less than 30 days if I've already sent notice of the meeting and reserved a conference room, etc.?


Mind you we are a very small POA and none of us are POA/law experts.



Brent
GenoS
(Florida)

Posts:2435


07/05/2018 3:04 PM  
You probably have to create your own proxy form. For a "directed proxy", the proxy form itself would list the names of the candidates with instructions to vote for some number. Sort of like a ballot, but a proxy is not a ballot. What do your Bylaws say about mail-in ballots? Again, different than proxies. If your docs say "in person or by proxy" then no mail-in ballots should be used.

My HOA's bylaws say "in person or by proxy" and yet boards here have been holding elections for years that include the use of mail-in ballots. It hasn't been a problem and it won't be until someone complains. We're trying to straighten that out but it's a difficult and slow process.
AugustinD


Posts:1127


07/05/2018 7:27 PM  
I think I am just echoing Geno here.

-- You are correct in not mailing out a ballot to members. Be aware that many people do not understand the difference between a form that designates a proxy and a ballot.

-- Mailing out a basic proxy form to all would be helpful but maybe not technically legally required. The proxy form should comply with the governing documents and not go beyond what the governing documents require.

-- The only part that sounds open to challenge is that it appears you are running this election on your own. What does the rest of the board say to all this? Are there other directors? If not, have you tried to appoint other directors?
JenniferG11
(Texas)

Posts:464


07/05/2018 8:48 PM  
I don't know if you have to, but I don't know why you wouldn't mail out a proxy form. I guess I have taken for granted ours have to since we always get one.

It gives two options. We can make the choices ourselves and have our proxy just be there with them, or we can designate anyone to make our choices for us.

JenniferG11
(Texas)

Posts:464


07/05/2018 9:08 PM  
Posted By BrentS5 on 07/05/2018 9:53 AM
Team,


Is there an official voting form / proxy form that I must send out 30 days in advance? Can I send out a ballot form less than 30 days if I've already sent notice of the meeting and reserved a conference room, etc.?







I looked up some articles from your state and it's typical to, and as I said above I don't know why you wouldn't want to. If for no other reason than to help make quorum from your POV, and ease for the homeowners.

To have each of them trying to figure out a legal proxy seems onerous. I don't see any reason why you cannot mail them out now. I wouldn't mail ballots if your documents say 'in person or by proxy', but I would send out a proxy form with the two options that I listed above.

Is this for an election and/or other matters?
JohnC46
(South Carolina)

Posts:7772


07/06/2018 3:33 AM  
Brent

What are you holding a vote for? Is this part of your Annual Meeting or a Special Vote? A properly worded proxy mailed to all owners could serve as a ballot.
GeorgeS21
(Florida)

Posts:669


07/06/2018 4:40 AM  
Another angle - perhaps the usage of proxy is simply a way to say “not in person?”

In other words the writers meant the proxy language to mean “by ballot.”

It is an inaccurate usage, but ....

JenniferG11
(Texas)

Posts:464


07/06/2018 5:03 AM  
Posted By BrentS5 on 07/05/2018 9:53 AM
Team,


I have one member stating that I must send out a ballot so the remote owners of vacant lots can fill out their votes, designate a proxy, and sign their name.






If ballots were mailed and could be mailed back/dropped off in advance of the meeting, that would be absentee voting, not voting by proxy, so the way this is phrased does not make sense.

I think he wants a proxy form sent. I think you should, but if you don't want to and don't have to and don't care about helping yourself make quorum, let him know this proxy can be on a cocktail napkin if he wishes, there is no one official format.
BrentS5
(North Carolina)

Posts:41


07/06/2018 5:40 AM  
This election is for raising dues, changing our bylaws to instate a $1,000 spending cap on the board, and voting not to renew agreement to let public school buses drive on our private road to hopefully reduce the rate of damage to our roads.
BrentS5
(North Carolina)

Posts:41


07/06/2018 5:40 AM  
Raising dues from $150/yr to $165/yr mind you.
JenniferG11
(Texas)

Posts:464


07/06/2018 5:42 AM  
Posted By BrentS5 on 07/06/2018 5:40 AM
This election is for raising dues, changing our bylaws to instate a $1,000 spending cap on the board, and voting not to renew agreement to let public school buses drive on our private road to hopefully reduce the rate of damage to our roads.




If you are in favor of these passing, you're going to want to do whatever you can to get enough votes in.
GeorgeS21
(Florida)

Posts:669


07/06/2018 5:58 AM  
Yep, do whatever it takes to get, within the limits of specifics of Bylaws and state law, membership turnout!

Btw - my last neighborhood of 20 yrs had private roads - we determined, with engineering assistance, that school buses were not damaging our roads ...way more damage from the various remodeling projects, pool builds, etc delivery trucks. Very dependent on where the buses turn around, because having to backup, etc numerous times does cause more damage.
BrentS5
(North Carolina)

Posts:41


07/06/2018 7:42 AM  
Thanks for that detail regarding buses. Scientifically makes sense as well. Our buses do not turn around.. I try to keep out of votes. If a member brings up a vote and someone seconds it, then I hold a vote. Whether I want it or not doesn’t come into play. Should it?
AugustinD


Posts:1127


07/06/2018 9:24 AM  
Posted By JenniferG11 on 07/05/2018 8:48 PM
I don't know if you have to, but I don't know why you wouldn't mail out a proxy form. I guess I have taken for granted ours have to since we always get one.

It gives two options. We can make the choices ourselves and have our proxy just be there with them, or we can designate anyone to make our choices for us.



Well said.
KerryL1
(California)

Posts:5767


07/06/2018 5:32 PM  
I'm confused, Brent. What do you mean if a member brings up a vote? That's at a meeting of the members, right? Whereas at Board meetings, only board members (directors) should make motions & vote. Please clarify.
BrentS5
(North Carolina)

Posts:41


07/06/2018 6:11 PM  
At our last community meeting, motions were seconded to vote about these issues. We documented them and put on the agenda for this upcoming meeting.

I spoke to a lawyer today. A ballot is not required but won’t hurt. It’s also not illegal for them to pay other members for their proxy vote.
BrentS5
(North Carolina)

Posts:41


07/06/2018 6:12 PM  
I am sending a new letter with extended date for the meeting and a ballot complete with “please designate a proxy” with signature. They can email or mail.
JanetB2
(Colorado)

Posts:4151


07/07/2018 12:40 AM  
Posted By BrentS5 on 07/05/2018 9:53 AM
Team,

I am a POA president holding a vote soon. I notified every member I have addresses for 35 days in advance. Bylaws say minimum of 30 days.

I included the phrase you must vote in person or designate a proxy to vote on your behalf, listed my phone number to call for questions, listed the address to mail designated proxy along with your signature, and I listed every item we would be voting on.

I have one member stating that I must send out a ballot so the remote owners of vacant lots can fill out their votes, designate a proxy, and sign their name.

I do not have a problem mailing out a ballot. However, nothing in the bylaws says that I have to. It simply states I must inform the owners what is going on, when/where it is going on, and that they can designate a proxy to vote on their behalf.

Is there an official voting form / proxy form that I must send out 30 days in advance? Can I send out a ballot form less than 30 days if I've already sent notice of the meeting and reserved a conference room, etc.?

Mind you we are a very small POA and none of us are POA/law experts.

Brent


https://www.ncleg.net/gascripts/statutes/StatutesTOC.pl?Chapter=0047F

§ 47F-3-108. Meetings.
(a) A meeting of the association shall be held at least once each year. Special meetings of the association may be called by the president, a majority of the executive board, or by lot owners having ten percent (10%), or any lower percentage specified in the bylaws, of the votes in the association. Not less than 10 nor more than 60 days in advance of any meeting, the secretary or other officer specified in the bylaws shall cause notice to be hand-delivered or sent prepaid by United States mail to the mailing address of each lot or to any other mailing address designated in writing by the lot owner, or sent by electronic means, including by electronic mail over the Internet, to an electronic mailing address designated in writing by the lot owner. The notice of any meeting shall state the time and place of the meeting and the items on the agenda, including the general nature of any proposed amendment to the declaration or bylaws, any budget changes, and any proposal to remove a director or officer.
(b) Meetings of the executive board shall be held as provided in the bylaws. At regular intervals, the executive board meeting shall provide lot owners an opportunity to attend a portion of an executive board meeting and to speak to the executive board about their issues or concerns. The executive board may place reasonable restrictions on the number of persons who speak on each side of an issue and may place reasonable time restrictions on persons who speak.
(c) Except as otherwise provided in the bylaws, meetings of the association and the executive board shall be conducted in accordance with the most recent edition of Robert's Rules of Order Newly Revised. (1998-199, s. 1; 2004-109, s. 6; 2005-422, s. 5.)

Appears your State Law potentially notes NOT less that 10 nor MORE than 60 days in advance ... for meetings of the Association Annual or Special Meetings.

Voting and Proxies state:

§ 47F-3-110. Voting; proxies.
(a) If only one of the multiple owners of a lot is present at a meeting of the association, the owner who is present is entitled to cast all the votes allocated to that lot. If more than one of the multiple owners are present, the votes allocated to that lot may be cast only in accordance with the agreement of a majority in interest of the multiple owners, unless the declaration or bylaws expressly provide otherwise. Majority agreement is conclusively presumed 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.
(b) Votes allocated to a lot may be cast pursuant to a proxy duly executed by a lot owner. 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. A lot owner may not revoke a proxy given pursuant to this section except by actual notice of revocation to the person presiding over a meeting of the association. A proxy is void if it is not dated. A proxy terminates 11 months after its date, unless it specifies a shorter term.
(c) If the declaration requires that votes on specified matters affecting the planned community be cast by lessees rather than lot owners of leased lots, (i) the provisions of subsections (a) and (b) of this section apply to lessees as if they were lot owners; (ii) lot owners who have leased their lots to other persons may not cast votes on those specified matters; and (iii) lessees are entitled to notice of meetings, access to records, and other rights respecting those matters as if they were lot owners. Lot owners shall also be given notice, in the manner provided in G.S. 47F-3-108, of all meetings at which lessees may be entitled to vote.
(d) No votes allocated to a lot owned by the association may be cast.
(e) The declaration may provide that on specified issues only a defined subgroup of lot
owners may vote provided:
(1) The issue being voted is of special interest solely to the members of the subgroup; and
(2) All except de minimis cost that will be incurred based on the vote taken will be assessed solely against those lot owners entitled to vote.
(f) For purposes of subdivision (e)(1) above, an issue to be voted on is not a special interest solely to a subgroup if it substantially affects the overall appearance of the planned community or substantially affects living conditions of lot owners not included in the voting subgroup. (1998-199, s. 1.)
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