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Subject: Voting by mail in ballots
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PaulaR3
(South Carolina)

Posts:14


02/16/2021 4:41 AM  
Our President does not want to have the Annual meeting which was delayed last year and will be delayed again this year due to COVID stating we are preventing those Co-Owners without Computers the opportunity to attend even by Zoom even though I informed her an individual in that situation may call in through the telephone on zoom.

Now the President wants to have mail in balloting with less than 5 weeks from the date we are scheduled to have the meeting per by our bylaws.Even though we will technically have six Directors whose term will end, she only wants to vote on 3 Directors so she and two others who terms will expire can remain on the board for another year. I believe this action is illegal which I previously addressed on this forum.

Has anyone done mail in voting and was it successful? I see so many legal issues in this choice.

1) Proxy - how to allow and how to verify. A proxy can be anyone, not necessarily another Co-Owner or Director. Why would we need a proxy if everyone is either emailing or mailing their vote in?

What to do with mail in ballots which were mailed timely but do not get delivered by our deadline of March 22, 2021 due to the delay of USPS.

2) Quorum - I would think a quorum would have to be determined which is required per our bylaws before ballots are mailed out. How can we do that?
A quorum per our bylaws “Except as may be otherwise provided in these bylaws, a majority of the Co-Owners present in person or by proxy, at any meeting of Co-Owners shall constitute a quorum at all meetings of Co-Owners. I don’t see the term “quorum”addressed anywhere else in the bylaws.

3) Nominations for new Directors - we usually have a meet and greet so Co-Owners can meet the person and get their views. Bios are usually also required. We have a form Co-Owners use, which includes acceptance by the nominee which will take time and then return to the Election committee.

4) Our bylaws state the agenda for an annual meeting which includes the election of officers after determining the quorum.It is my opinion that we can only hold the election if we hold the complete annual meeting. Or do we get a pass due to COVID? We have important business other than election of officers to discuss since no meetings of any kind have been held since March 10, 2020.

5) We don’t even have a plan on how to pull this off. In my response to the President and Directors, I stated it would take the entire 5 weeks of extensive preparation to even pull this off. And I suggested we run a test run first. We have always had non-interested parties assist in the ballot counting which may not be available due to covid.

I currently am the Secretary of the Board. I have served my 3 year term with the President extending the term of myself and two other Directors without a Resolution or vote by Co-Owners and really without our approval. She never elected new Officers so she has basically been President for 2 years and soon to be for 3 years with only one election by Directors. She is getting ready to do the same thing for herself and 2 others whose term will expire next month, extending without their approval.

Thank you for your comments.


TimB4
(Virginia)

Posts:17439


02/16/2021 6:30 AM  
First and foremost, I agree with you. Something isn't right.
At least you are having the election.

1st and foremost, you can not vote by mail unless statutes or governing documents allow it.
Check.

However, if proxies are allowed, you can have the same thing.


Posted By PaulaR3 on 02/16/2021 4:41 AM


1) Proxy - how to allow and how to verify. A proxy can be anyone, not necessarily another Co-Owner or Director. Why would we need a proxy if everyone is either emailing or mailing their vote in?

What to do with mail in ballots which were mailed timely but do not get delivered by our deadline of March 22, 2021 due to the delay of USPS.





We use directed proxies. I've attached one as an example.
Directed proxies specify how the proxy representative should cast their vote (vs. a general proxy allowing the representative to vote how they think is best).

Proxies are taken at face value unless there is belief that there is fraud.
Then it requires a simple phone call or email to confirm.

As far as mail, you have to have a deadline.
We specify that proxies must be received by the start of meeting to be counted.
Our PO Box would be checked one hour before the meeting (after delivery of mail).


Posted By PaulaR3 on 02/16/2021 4:41 AM


2) Quorum - I would think a quorum would have to be determined which is required per our bylaws before ballots are mailed out. How can we do that?
A quorum per our bylaws “Except as may be otherwise provided in these bylaws, a majority of the Co-Owners present in person or by proxy, at any meeting of Co-Owners shall constitute a quorum at all meetings of Co-Owners. I don’t see the term “quorum”addressed anywhere else in the bylaws.





Typically, when proxies are allowed, the language used is: The presence of persons entitled to cast or of proxies entitled to cast x percent of the vote shall constitute a quorum.

Hence, you can count the number of proxies received toward a quorum.

Posted By PaulaR3 on 02/16/2021 4:41 AM

3) Nominations for new Directors - we usually have a meet and greet so Co-Owners can meet the person and get their views. Bios are usually also required. We have a form Co-Owners use, which includes acceptance by the nominee which will take time and then return to the Election committee.




A short statement or bio can be sent with the proxy form to the members.
That's how we do it.

Posted By PaulaR3 on 02/16/2021 4:41 AM

4) Our bylaws state the agenda for an annual meeting which includes the election of officers after determining the quorum.It is my opinion that we can only hold the election if we hold the complete annual meeting. Or do we get a pass due to COVID? We have important business other than election of officers to discuss since no meetings of any kind have been held since March 10, 2020.




I'd have to see that section of the bylaws. Typically, the new board appoints the officers.
For us, we do this within 7 days.
If it has to be done after the meeting, then the new board can get together by zoom or email (as an action without meeting).

Posted By PaulaR3 on 02/16/2021 4:41 AM

5) We don’t even have a plan on how to pull this off. In my response to the President and Directors, I stated it would take the entire 5 weeks of extensive preparation to even pull this off. And I suggested we run a test run first. We have always had non-interested parties assist in the ballot counting which may not be available due to covid.




It's not that difficult but may take longer if time isn't available.
You may or may not have volunteers to count - simply means those present count (you would have the same issue with a zoom meeting).

Type a letter, agenda, proxy form, address envelopes, stuff, stamp and mail.

Annual reports by officers can be sent later or emailed to those desiring a copy.


Posted By PaulaR3 on 02/16/2021 4:41 AM


I currently am the Secretary of the Board. I have served my 3 year term with the President extending the term of myself and two other Directors without a Resolution or vote by Co-Owners and really without our approval.




Approval would be in the corporate statutes.
Despite the expiration of their term, the directors continue to serve until their replacement is named or they resign.

Posted By PaulaR3 on 02/16/2021 4:41 AM

She never elected new Officers so she has basically been President for 2 years and soon to be for 3 years with only one election by Directors.




As a board member, did you call for elections of Officers?
Keep in mind, it's possible nobody wanted any position then what they already had. If that was the case, no real need to formally vote. At the next meeting (if you are still willing to serve) call for a vote.

Posted By PaulaR3 on 02/16/2021 4:41 AM

She is getting ready to do the same thing for herself and 2 others whose term will expire next month, extending without their approval.




As I said, something doesn't seem right based on what you provided.
However, that individual isn't doing it on their own.
It is allowed to happen because a majority of the board is allowing it to happen.
Blame those who allow it to happen, not just one individual.

Hope this helps,

Tim

Attachment: 1216305335771.doc

PaulaR3
(South Carolina)

Posts:14


02/16/2021 8:07 AM  
Thank you for your in-depth response.
KerryL1
(California)

Posts:7853


02/16/2021 8:55 AM  
Why does the Board allow the resident to make decisions without board approval? Is everyone afraid of her? Or?
JeffT2
(Iowa)

Posts:593


02/16/2021 11:55 AM  
Are you incorporated? If so, this is from the SC Nonprofit Corporation Act.

33-31-708. Action by written or electronic ballot.

Universal Citation: SC Code § 33-31-708 (2013)
(a) Unless prohibited or limited by the articles or bylaws, any action that may be taken at any annual, regular, or special meeting of members may be taken without a meeting if the corporation delivers a written or electronic ballot to every member entitled to vote on the matter.

(b) A written or electronic ballot shall:

(1) set forth each proposed action; and

(2) provide an opportunity to vote for or against each proposed action.

(c) Approval by written or electronic ballot pursuant to this section is valid only when the number of votes cast by ballot equals or exceeds the quorum required to be present at a meeting authorizing the action, and the number of approvals equals or exceeds the number of votes that would be required to approve the matter at a meeting at which the total number of votes cast was the same as the number of votes cast by ballot.

(d) All solicitations for votes by written or electronic ballot shall:

(1) indicate the number of responses needed to meet the quorum requirements;

(2) state the percentage of approvals necessary to approve each matter other than election of directors; and

(3) specify the time by which a ballot must be received by the corporation in order to be counted.

(e) Except as otherwise provided in the articles or bylaws, a written or electronic ballot may not be revoked.
BenA2
(Texas)

Posts:800


02/16/2021 1:18 PM  
We have always done mail-in and electronic balloting with no problems.

You're right, proxies are not necessary with absentee voting but our state requires it so we send out a proxy form with the ballot (to my knowledge it's never been used).

Our bylaws state that absentee ballots count towards a quorum.

Our nominations are made before the annual meeting and bios published beforehand. Anything we vote on is on the ballot.
PaulaR3
(South Carolina)

Posts:14


02/17/2021 2:23 PM  
Unfortunately in determining a quorum, our bylaws state a quorum is determined by Co-Owners present in person or by proxy. I don’t think we could do mail in voting.

We solicited comments from the Co-Owners on what they would want to do for the annual meeting and voting for Directors. The options are :
1)In Person meeting with in person Co-Owners and proxy voters (for Co-Owners not in attendance)
2) zoom meeting with mail in voting which I personally don’t believe we have the authority to do,
3) delay the meeting until July.

Do your bylaws allow for absentee voting?

We have not even had a Zoom meeting for Regular meetings. I feel we need to test the waters with Zoom before having 100 Co-Owners on the screen at once. Then we still have the problem on how to hold the election of Directors if a zoom meeting. I see the advantage of Zoom for regular meetings but not for an annual meeting.

Thank you to all who responded.
PaulaR3
(South Carolina)

Posts:14


02/17/2021 2:38 PM  
Yes we are incorporated and use the above. Our disbanded election committee presented to the Board their recommendation we not use electronic voting due to the cost of $5,000 and the need for smartphones which everyone does not have. I would like to talk to you later about how large your HOA is and how successful electronic voting is. Do Co-Owners vote in person at the meeting or can they vote from home if even not in attendance? Our by laws state to determine in quorum it is based on a majority of the in person present Co-Owners and proxy’s. I know with the above, electronic voting would be allowed.

As I stated below, we asked the Co-Owners for their preference for the March 22, 2021 annual meeting. Somehow the Co-Owners have the idea we are offering a hybrid of a in person meeting and zoom meeting which we never offered except as separate options. One Director thinks people who can not be there in person who vote by proxy, should be able to attend by Zoom to see what is going on. That is not the purpose of a proxy. Proxy attends the meeting, speaks on behalf of the Co-Owner and votes. The Co-Owner gives up all rights to attend the meeting in person if they appoint a proxy to represent them.

Zoom will create a nightmare as we have 147 Co-Owners. Some of the newer Co-Owners no one will be able to identify so we would have to have everyone identify themself and verify they are a Co-Owner.


JohnC46
(South Carolina)

Posts:10651


02/17/2021 2:57 PM  
I agree with Paula. A Zoom meeting for an Annual Meeting (112 owners here) could well be a "cluster kiss" with nothing getting done and many feeling left out as they do not understand nor want to use the technology.

Our lawyer has advised us that due to Covid, courts would (assuming they are open) pretty much side with an HOA BOD if they were being "fair". WE did not hold a 2019 Annual Meeting in 2020 and we extended the terms of the existing BOD (3 of the 5) another year. We did outline everything in a letter to each owner and as we have no ankle biters no one challenged nor disagreed with our action.

As of now we fully expect to be able to hold an Annual Meeting later this year. At that time all 5 of our BOD Members will be up for election. As we stagger our 2 year terms we plan on getting back on this cycle by having the top 2 vote getters have a two year term and the next 3 vote getters have a one year term.

Again, we have no ankle biters so it is "easy" for our BOD to do what we do. Plus we usually have to go begging owners to be on the BOD so no real conflicts.
AugustinD


Posts:0


02/17/2021 3:05 PM  
Posted By JohnC46 on 02/17/2021 2:57 PM

Our lawyer has advised us that due to Covid, courts would (assuming they are open) pretty much side with an HOA BOD if they were being "fair". WE did not hold a 2019 Annual Meeting in 2020 and we extended the terms of the existing BOD (3 of the 5) another year. We did outline everything in a letter to each owner and as we have no ankle biters no one challenged nor disagreed with our action.
Many folks have posted here in the last year or so objecting to their Board not running an annual election. Often these folks explain that others do want to serve on the board, and that they do want to replace the current board using the annual election, with relatively easy adjustments to accommodate Covid, as per many law firm web sites. If these folks are "ankle biters" in your book, then I'd say there are a few pejorative names you probably deserve to be called.
JeffT2
(Iowa)

Posts:593


02/18/2021 9:02 AM  
Posted By PaulaR3 on 02/17/2021 2:23 PM
Unfortunately in determining a quorum, our bylaws state a quorum is determined by Co-Owners present in person or by proxy. I don’t think we could do mail in voting.



Yes you can vote by mail despite your quorum requirement. Here is how it works. The law says that "any action ... may be taken without a meeting if the corporation delivers a written or electronic ballot...". This means that the vote for directors is accomplished without the meeting. You can count the votes in the meeting, but the meeting is not actually part of the process to accomplish the vote. The quorum requirement is handled by the law's statement: "... the number of votes cast by ballot equals or exceeds the quorum...".
JohnC46
(South Carolina)

Posts:10651


02/18/2021 10:51 AM  
Posted By JeffT2 on 02/18/2021 9:02 AM
Posted By PaulaR3 on 02/17/2021 2:23 PM
Unfortunately in determining a quorum, our bylaws state a quorum is determined by Co-Owners present in person or by proxy. I don’t think we could do mail in voting.



Yes you can vote by mail despite your quorum requirement. Here is how it works. The law says that "any action ... may be taken without a meeting if the corporation delivers a written or electronic ballot...". This means that the vote for directors is accomplished without the meeting. You can count the votes in the meeting, but the meeting is not actually part of the process to accomplish the vote. The quorum requirement is handled by the law's statement: "... the number of votes cast by ballot equals or exceeds the quorum...".



I will continue to use the term ankle biters when I see fit and you can continue to play HOAtalk lawyer and we will both be happy.
JeffT2
(Iowa)

Posts:593


02/18/2021 5:34 PM  
Posted By JohnC46 on 02/18/2021 10:51 AM
Posted By JeffT2 on 02/18/2021 9:02 AM
Posted By PaulaR3 on 02/17/2021 2:23 PM
Unfortunately in determining a quorum, our bylaws state a quorum is determined by Co-Owners present in person or by proxy. I don’t think we could do mail in voting.



Yes you can vote by mail despite your quorum requirement. Here is how it works. The law says that "any action ... may be taken without a meeting if the corporation delivers a written or electronic ballot...". This means that the vote for directors is accomplished without the meeting. You can count the votes in the meeting, but the meeting is not actually part of the process to accomplish the vote. The quorum requirement is handled by the law's statement: "... the number of votes cast by ballot equals or exceeds the quorum...".



I will continue to use the term ankle biters when I see fit and you can continue to play HOAtalk lawyer and we will both be happy.



works for me, although I think you meant this for someone else.
JohnC46
(South Carolina)

Posts:10651


02/19/2021 8:42 AM  
Posted By JeffT2 on 02/18/2021 5:34 PM
Posted By JohnC46 on 02/18/2021 10:51 AM
Posted By JeffT2 on 02/18/2021 9:02 AM
Posted By PaulaR3 on 02/17/2021 2:23 PM
Unfortunately in determining a quorum, our bylaws state a quorum is determined by Co-Owners present in person or by proxy. I don’t think we could do mail in voting.



Yes you can vote by mail despite your quorum requirement. Here is how it works. The law says that "any action ... may be taken without a meeting if the corporation delivers a written or electronic ballot...". This means that the vote for directors is accomplished without the meeting. You can count the votes in the meeting, but the meeting is not actually part of the process to accomplish the vote. The quorum requirement is handled by the law's statement: "... the number of votes cast by ballot equals or exceeds the quorum...".



I will continue to use the term ankle biters when I see fit and you can continue to play HOAtalk lawyer and we will both be happy.



works for me, although I think you meant this for someone else.




OOPS. Meant for August
CindyH6
(Florida)

Posts:20


02/20/2021 7:32 PM  
We had a “special meeting “ for 1 thing on zoom and we never got to vote on the 1 thing. Because, some guy hijacked the meeting with a motion to adjourn and revisit the emergency problem some time in the future. Because they were not sure about the “bids”. Being apples to apples, So the stupid property manager said ok let’s take a vote on revisiting the problem later .... I was so mad , that was months ago , I felt like I was in high school and I did my report on time and studied for the test , but the losers didn’t .

Plus the delay is keeping me from being able to legally sell my property.

Now we got 3 more bids and they are inferior product at a much higher price. So yes , zoom is not good for more than 3 or 4 people for something not important
CindyH6
(Florida)

Posts:20


02/20/2021 7:33 PM  
We had a “special meeting “ for 1 thing on zoom and we never got to vote on the 1 thing. Because, some guy hijacked the meeting with a motion to adjourn and revisit the emergency problem some time in the future. Because they were not sure about the “bids”. Being apples to apples, So the stupid property manager said ok let’s take a vote on revisiting the problem later .... I was so mad , that was months ago , I felt like I was in high school and I did my report on time and studied for the test , but the losers didn’t .

Plus the delay is keeping me from being able to legally sell my property.

Now we got 3 more bids and they are inferior product at a much higher price. So yes , zoom is not good for more than 3 or 4 people for something not important
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