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Subject: Proxy Protocol
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Author Messages
TammyC3
(New Mexico)

Posts:70


10/10/2019 5:43 AM  
Hello again,

Our governing docs: Article III - Meeting of Members - Section 5: Proxies: "At all meetings of Members, each Member may vote in person or by proxy. All proxies shall be in writing and filed with the Secretary. Every proxy shall be revocable and shall automatically cease upon transfer by the Member of his lot."

New Mexico HOA Act found here - (section 10)
http://www.nmprc.state.nm.us/consumer-relations/docs/Homeowner%20Association%20Act.pdf

SB 150 found here - (section 4)
https://nmlegis.gov/Sessions/19%20Regular/final/SB0150.pdf

Background: Directors realized that the Developer was not paying the correct assessments and that the Treasurer had hidden these lower payments in the service of her 'friends'. This billing was corrected by the newest 5 Directors, with only the past President and the Treasurer arguing in favor of the developer.

Questions:

Proper handling of proxy votes regarding: "in writing and filed with the Secretary".

Is 'filed with Secretary' a permitted action under the law and is this S.O.P.?

"..in writing". Is this to be interpreted to mean "hard copy" in hands of Secretary?

Recently, members were encouraged (by developer who released control in 2007) to send proxy votes for a 'special meeting'. Upon arrival, several (5 of 7) Directors and many Members in opposition to the actions to be taken at the special meeting were advised that this was 'not their meeting', and they must leave. It was a circus! Yelling, shouting, intimidation. When members and directors refused to leave, the 'special meeting' group moved the meeting to another undisclosed venue and voted with their proxies to remove Directors.
We give no credit to this meeting or this vote, and we questioned the legitimacy of some of the proxies (not the 'owner' listed at tax assessor office).

Our Annual Meeting of Members is around the corner. How do we ensure proxy votes are 'actual' & legitimate?


TimB4
(Virginia)

Posts:16678


10/10/2019 6:45 AM  
Filed with the secretary is simply another way of saying the proxy must be presented to the board and kept with the official records of the Association. The Secretary typically maintains the records of the Association.

In writing means a signed document.
CathyA3
(Ohio)

Posts:761


10/10/2019 12:16 PM  
<<
Recently, members were encouraged (by developer who released control in 2007) to send proxy votes for a 'special meeting'. Upon arrival, several (5 of 7) Directors and many Members in opposition to the actions to be taken at the special meeting were advised that this was 'not their meeting', and they must leave. It was a circus! Yelling, shouting, intimidation. When members and directors refused to leave, the 'special meeting' group moved the meeting to another undisclosed venue and voted with their proxies to remove Directors.
We give no credit to this meeting or this vote, and we questioned the legitimacy of some of the proxies (not the 'owner' listed at tax assessor office). >>

Unless this "special meeting" complied with your bylaws, it was invalid and any actions taken were invalid. The proxies don't matter - they're just one more illegitimate thing about the meeting. Other problems: excluding members who wanted to be there, moving to an undisclosed location.

You're lucky the opposition is so uninformed about proper procedures. They know just enough to undermine themselves.
AugustinD


Posts:2640


10/10/2019 12:33 PM  
Posted By TammyC3 on 10/10/2019 5:43 AM
Our governing docs: Article III - Meeting of Members - Section 5: Proxies: "At all meetings of Members, each Member may vote in person or by proxy. All proxies shall be in writing and filed with the Secretary. Every proxy shall be revocable and shall automatically cease upon transfer by the Member of his lot."

Our Annual Meeting of Members is around the corner. How do we ensure proxy votes are 'actual' & legitimate?


The case law on this says that the only restrictions a board may place on proxies are those listed in the Bylaws. If the Bylaws have no restrictions, then there are no restrictions allowed. Hence a board may not require notarization, a photograph of the driver's license of the person assigning the proxy, or anything else not in the Bylaws.

Some possible work-arounds:

-- Vote electronically. Each member has a login ID and password emailed to her or his email address of record. Then there's little, if any, need for proxies. Granted in some states, it is not clear electronic voting is allowed. I am not aware of a state that flat-out prohibits electronic voting. Plus it's used all the time in for-profit corporate america board elections. There are companies that will set up a web site for online voting and then fly out to be present on election day and collect remaining votes, announce results, et cetera.

-- Have a CPA referee the election, including challenges to signatures on proxies. I do not favor this. I am not pleased with the professionalism and knowledge of CPAs. Plus skirmishes could still erupt over whether a signature is legitimate.
SueW6
(Michigan)

Posts:649


10/10/2019 12:46 PM  
Usually, the board president leads the “special meeting” with the secretary taking minutes. All other board members sit in the audience as Members of the HOA ( if they fit regular member definition). This wasn’t a board meeting. So I don’t know why they were asked to leave.

These special meetings cant pass motions unless that is stated in the purpose of the meeting.

It really sounds like this group had a town hall meeting. These can turn into a debacle if not lead right or have a clear purpose.
JohnC46
(South Carolina)

Posts:9139


10/11/2019 8:23 AM  
Most often a Special Meeting is called for specific reason and cannot deviate from that stated reason. As an example: To remove Mary Smith from the BOD and replace her with John Jones.
TammyC3
(New Mexico)

Posts:70


10/11/2019 7:00 PM  
Thanks Tim.

Would the 'signed document' be acceptable via email? Should the Secretary have the original? If yes, at what point?

TammyC3
(New Mexico)

Posts:70


10/11/2019 7:02 PM  
Affirmation is great! Thanks Cathy.
TammyC3
(New Mexico)

Posts:70


10/11/2019 7:10 PM  
Hi Augustin,

Thanks!

Speaking of signatures on proxies:
Question of the hour is: What if the name on the proxy is typed on the signature line instead of 'signed'?

We consider eliminating proxy votes altogether. Less than 5 proxy votes received in 5 years. But .. I could be gone with tomorrow's vote ... so there's that!!

thanks again.
TammyC3
(New Mexico)

Posts:70


10/11/2019 7:21 PM  
Agreed.

Thanks Sue.


TammyC3
(New Mexico)

Posts:70


10/11/2019 7:25 PM  
Is this applicable if Mary Smith is an officer?


TimB4
(Virginia)

Posts:16678


10/12/2019 8:15 AM  
Posted By TammyC3 on 10/11/2019 7:00 PM
Thanks Tim.

Would the 'signed document' be acceptable via email? Should the Secretary have the original? If yes, at what point?






We require the original to be turned in at the meeting (when they check in) or prior if desired.

Note: VA laws allow for electronic signatures. Other states may require that electronic signatures also be accepted. These laws are usually within the corporate code.

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