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Subject: Problems with Annual Meeting Quorum and Proxies
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Author Messages
MaxB4
(California)

Posts:1601


08/07/2021 10:14 PM  
Edward,

Knowing some basic terminology will go a long way in trying to secure a board seat. First, you need a majority to effect any change in your community. Put together a slate of like minded candidates. Not all will have the initial skill set, but someone on your side does. You saw how they beat you with the proxy, get a copy of that proxy and duplicate it, just change the language where it is needed. They knew how the rules were played and used it to their advantage. Learn from that.

Kerry wrote: Well, in our HOA the ballot materials state that if quorum isn't made, the meeting will be adjourned to mm/dd/year. That doesn't follow parliamentary procedure of which membership meeting are to be conducted. A motion must be made, either by a presiding officer and seconded before a vote from the floor can be done. In your case, the board knew the procedure and loaded the opposite side. They knew if the meeting was adjourned, there might have been a good chance the board could have been voted out. They hedged their bets, legally. Learn from that.

My suggestion, find a couple of property managers in your area and ask for their help. You will be surprised you might get a couple of takers. Ask a couple of HOA election companies, they will also know the proper procedures in conducting election. Get a membership list complete with email addresses. They are now required to provide email addresses now per Civil Code §5200(9).

Good luck to you.
AugustinD


Posts:1920


08/08/2021 7:52 AM  
Posted By EdwardD4 on 08/07/2021 7:13 PM

The lack of oversight in non profit HOA/COA’s needs to change, and it should not rest solely upon a number of members that want change to hire an attorney when things happen like this costing upwards to $100,000 easily. Not fair that the board can use our dues to pay for our own attorney to go against us. They have an unlimited civil lawsuit against me that I’m waiting to get served on. That’s what happens when you speak up about everything I mentioned in my postings.
I think the question is how often you are accusing the Board of wrongdoing when it is not violating any covenant or law.

As I said, some of your points have merit. But many do not. You have also posted some flat-out lies here, like:
Posted By AdamL1 on 08/05/2021 8:52 AM

The CCR's define nuisance as sights and smells.
The City defines nuisance likewise.


Ya gotta research the facts. Ya have to present the facts accurately. Down the road if you get on the board, your credibility will be everything. Will people trust what you say? I know I won't until I ask a number of questions, separating the lies from the truth.


I have no hard feelings, but when tragedies happen like Surfside Florida, maybe more laws will change to protect homeowners in HOA/COA’s
Hey, time-out. I think you are conflating issues here. When the Surfside board wanted to impose a special assessment, the Surfside homeowners gave directors grief for a few years about this. The media has reported amply on board meetings that were shouting matches.

The Surfside board had the sole power to impose a special assessment. No vote of the membership was required. The board did so too late (at least by the evidence so far?).

I think some laws to protect directors from homeowners are needed. The first new law should be something like: "Every condo association is required to maintain reserves within 90% of what a reserve study, completed in the last five years by a licensed reserve company, and updated annually, recommends."


AugustinD


Posts:1920


08/08/2021 8:07 AM  
Posted By AugustinD on 08/08/2021 7:52 AM


As I said, some of your points have merit. But many do not. You have also posted some flat-out lies here, like:
Posted By AdamL1 on 08/05/2021 8:52 AM

The CCR's define nuisance as sights and smells.
The City defines nuisance likewise.


Ya gotta research the facts. Ya have to present the facts accurately. Down the road if you get on the board, your credibility will be everything. Will people trust what you say? I know I won't until I ask a number of questions, separating the lies from the truth.
Pardon my mistake in quoting AdamL1 here. I meant to quote some of the statements EdwardD4 posted that I feel cross the line to such distortions of the truth that they lead me to question much of what he says.
AugustinD


Posts:1920


08/08/2021 9:06 AM  
Posted By KerryL1 on 08/07/2021 2:29 PM
I also still don't get: "Owners can attend a Annual Meeting and their presence counts towards quorum [even if they don't vote]. They may not vote because the people on the ballots are the scumbags of the earth." Oh, I see. These owners are curious but do not vote. Hmmmm.... It's my understanding that only ballots are counted (and proxies if used ) towards quorum. We do have a check box on our ballot which says "for purposes of quorum only," or some such. and they return their secret ballot.
Posted By KerryL1 on 08/07/2021 12:43 PM

I have never heard that owners attending the annual meeting, but NOT voting count towards quorum in CA, Max. I've never heard of owners attending the annual meeting and election who don't vote. In addition, when it's joint owners of the same home, we know we may not count each towards quorum, but only one. I'll look it up later.
Posted By KerryL1 on 08/07/2021 5:37 PM
Max: "An owner can attend a meeting, and choose not to vote, that is their right." Kerry: Of course they may attend. But you stated above the non-voters count towards a quorum. They do not. Ballots that are turned in, even if blank or only have D. tRump written on them, count towards quorum
Posted By KerryL1 on 08/07/2021 7:34 PM
If you'll check Civil 5115, you'll see that it's ballots that count toward quorum not voters. The words attending the meeting in person is also in my 20 y.o. Bylaws and wherever present occurred before mail-in ballots were permitted in CA. As you know some state DO require in-person or proxy attendance to elect directors.
I do not agree with KerryL1's claim that only ballots (and not those present in person or by proxy) count towards quorum.

First, the relatively new Ca Civil Code section 5115 "Voting Procedure" at part (d) states:

"A quorum shall be required only if so stated in the governing documents or other provisions of law. If a quorum is required by the governing documents, each ballot received by the inspector of elections shall be treated as a member present at a meeting for purposes of establishing a quorum."

One of section 5115's foci is the mailing of ballots to all members. Ca Civil Code 5115 went into effect only on January 1, 2020. California law previously did not require the mailing of ballots.

I do not think what section 5115 says overrides verbiage in covenants like that in EdwardD4's covenants. From EdwardD4's May, 2021 thread:
Posted By EdwardD4 on 05/19/2021 1:47 PM
Section 7. Quorum Requirements for Association Meetings .

At all meetings of owners, a quorum for the transaction of business through the presence in person or by proxy of such members, shall be established fifty-one (51%) percent of the total voting power of the Association which shall be sufficient for the [passage] of any motion or adoption of any resolution, except in connection with amendment or alpeal of this Declaration; as hereinafter set forth under Articles X or XVI. . If the required quorum is not present, another meeting may be called subject to the written notice requirements sent to all members at least ten (10) days in advance of such meeting, and the required quorum at the subsequent meeting, shall be one-half (1/2) of the required quorum for the preceding meeting. In the absence of a quorum at a meeting of members, a majority of those present in person or by proxy may adjourn the meeting to another time, but may not transact any other business. An adjournment for [lack] of a quorum shall be to a date not less than five (5) nor more than thirty (30) days from the original meeting date.


I think 5515 (d) is merely clarifying that ballots sent out by mail and returned to the CIC/HOA/COA count towards quorum, but other numbers may also count towards quorum, like those present by proxy or in person. Section 5115 and other, newer Civil Code sections, certainly do not do away with proxies, did it? Section 5115 certainly does not have a clause stating that everything in Bylaws pertaining to quorums is now invalid, and the statutes alone determine quorum et cetera, does it?

I agree that practically speaking, proxies are becoming archaic. But they're still allowed, and they still count towards quorum to the extent bylaws say they count towards quorum.
AugustinD


Posts:1920


08/08/2021 9:33 AM  
Posted By EdwardD4 on 08/06/2021 11:33 PM

- Is the association manager allowed to re-elect the board members the same day that we failed to meet the quorum without any of them being present, and adjourn the meeting not allowing concerns to be addressed?
EdwardD4, can you please clarify what you mean by "without any of [the directors] being present"? Are you saying that the directors did not appear onscreen (by voice or picture et cetera) at the Zoom meeting?

If this is true, then this prohibits the directors from voting on behalf of any HOA owners who assigned proxies to these directors. In other words, if the directors were absent from the Zoom meeting, then they have no voting rights (by proxy or in person) on any motion to adjourn to another date.

Can you describe exactly what happened regarding any discussion of adjourning to another date? Did anyone make a motion to adjourn to another date? If so, who exactly voted? Did the stupid manager declare some jabberwocky like, "the directors are not here, but they were assigned 21 proxies, and the directors told me that they vote against adjourning to another date, pursuant to Section 7 of the Bylaws."
Posted By EdwardD4 on 05/19/2021 1:47 PM

Section 7. Quorum Requirements for Association Meetings .

At all meetings of owners, a quorum for the transaction of business through the presence in person or by proxy of such members, shall be established fifty-one (51%) percent of the total voting power of the Association which shall be sufficient for the paaaage of any motion or adoption of any resolution, except in connection with amendment or alpeal of this Declaration; as hereinafter set forth under Articles X or XVI. . If the required quorum is not present, another meeting may be called subject to the written notice requirements sent to all members at least ten (10) days in advance of such meeting, and the required quorum at the subsequent meeting, shall be one-half (1/2) of the required quorum for the preceding meeting. In the absence of a quorum at a meeting of members, a majority of those present in person or by proxy may adjourn the meeting to another time, but may not transact any other business. An adjournment for lact of a quorum shall be to a date not less than five (5) nor more than thirty (30) days from the original meeting date.

MaxB4
(California)

Posts:1601


08/08/2021 9:48 AM  
People in this country expect when they cast a ballot in an election for it to be opened and counted. Bottomline, this board knew that there were enough ballots returned that if a second meeting were held with a reduced quorum they could all have been voted out. They used a parliamentary procedure to change the outcome of the election. To me that is unethical and much worse than some of the things Edward has accused them of.

BTW, I informed the Association that wouldn't adjourn their annual meeting two weeks ago they needed to find a new inspector next year.
KerryL1
(California)

Posts:8729


08/08/2021 9:50 AM  
I'm glad you cited 5115, Augustin, because I did find it, lost it & didn't have time to get back to it. It states, "If a quorum is required by the governing documents, each ballot received by the inspector of elections shall be treated as a member present at a meeting for purposes of establishing a quorum."

This, it's ballots that count towards quorum, not Owners present in the meeting room at the Annual Meeting or present at it on Zoom. Ballots certainly include proxies, if used. Ballots certainly are counted towards quorum for owners who're present and submit a ballot. I never wrote otherwise.

A couple of our condos are owned by 3 families. If all those adults attended an annual meeting but did not vote, they would not count towards quorum. First, as we all know, only one vote per dwelling is allowed. Their one potential vote would not count towards quorum if they don't submit a ballot per the above citation.

Mail-in/absentee ballots have been permitted since 2006, but they are not " required" to be mailed in in CA. Our voters also can hand deliver them to the management office. OR, while very rarely done, Owners can actually submit their ballots at the meeting itself. At some point, the presider asks if there are any additional ballots. When none, an owner motions to close balloting and it's seconded and approved by the membership.

I have no experience with either adjourned meetings due to lack of quorum, or with proxies. I assume the non-voters IF they attend an annual meeting, could make motions of any kind--to approve the last meeting's minutes, adjourn the meeting, etc.
KerryL1
(California)

Posts:8729


08/08/2021 10:09 AM  
I did not use the phrase "skill set," tho' I may have cited it. Perhaps it's your reading comprehension, Max, that's a little sketchy. And, again tardy to the party, your advice to Edward to learn (correct) "basic terminology" was advised by a couple of us. Agreeing with us is a good thing---for Edward.

I wonder if Augustin is on to something? Must proxy-holders (if that's the right phrase) be present in person to use their proxies? If so, what could Edward do about it?
MaxB4
(California)

Posts:1601


08/08/2021 10:30 AM  
Posted By KerryL1 on 08/08/2021 10:09 AM
I did not use the phrase "skill set," tho' I may have cited it. Perhaps it's your reading comprehension, Max, that's a little sketchy. And, again tardy to the party, your advice to Edward to learn (correct) "basic terminology" was advised by a couple of us. Agreeing with us is a good thing---for Edward.

I wonder if Augustin is on to something? Must proxy-holders (if that's the right phrase) be present in person to use their proxies? If so, what could Edward do about it?



Since you wrote the Election Rules for your association, this should be a walk in the park for you.
AugustinD


Posts:1920


08/08/2021 10:32 AM  
Posted By KerryL1 on 08/08/2021 9:50 AM
This, it's ballots that count towards quorum, not Owners present in the meeting room at the Annual Meeting or present at it on Zoom.
If this is your position, then do cite the part of Civil Code that undoes this section of EdwardD4's Bylaws, defining quorum: "a quorum for the transaction of business through the presence in person or by proxy of such members". Furthermore, from Corporations Code §7512. Member Meeting Quorum:

(a) One-third of the voting power, represented in person or by proxy, shall constitute a quorum at a meeting of members, but, subject to subdivisions (b) and (c), a bylaw may set a different quorum. Any bylaw amendment to increase the quorum may be adopted only by approval of the members (Section 5034). If a quorum is present, the affirmative vote of the majority of the voting power represented at the meeting, entitled to vote, and voting on any matter shall be the act of the members unless the vote of a greater number or voting by classes is required by this part or the articles or bylaws.


The davis-stirling law firm site offers this:

A "quorum" of the membership is the required minimum of number of member votes present in person, by proxy and/or by ballot before the association may conduct business at a membership meeting. (Robert's Rules, 11th ed., pp. 21, 345.) The quorum is usually defined in the bylaws and sometimes in the CC&Rs.

Numerous sections of the California Civil Code and Corporate Code continue to speak of the legitimacy of proxies.

Nothing in the California statutes says that only ballots count towards quorum.

You and I disagree.

Permitting those assigned a proxy (to vote on behalf of another) to vote in absentia defeats a main purpose of proxies.

But I am still not clear about what EdwardD4 stated in his first post, regarding the directors not being present at the Zoom meeting.
JohnC46
(South Carolina)

Posts:11665


08/08/2021 10:40 AM  
Though I have never heard of an owner attending a meeting and letting their prior ballot or proxie stand, but as I think about it I say it is proper.
My question would be do they still have all the rights of an owner signed in or are they a non-entity? My initial blush is unless they rescind their ballot/proxie is they are a non-entity as in they cannot participate, only observe.
CathyA3
(Ohio)

Posts:2600


08/08/2021 10:59 AM  
Posted By JohnC46 on 08/08/2021 10:40 AM
Though I have never heard of an owner attending a meeting and letting their prior ballot or proxie stand, but as I think about it I say it is proper.
My question would be do they still have all the rights of an owner signed in or are they a non-entity? My initial blush is unless they rescind their ballot/proxie is they are a non-entity as in they cannot participate, only observe.



I think that would depend on what the proxy is/does, and you'd have to read the language on the proxy (or in bylaws or state law if they address this).

Does the proxy transfer only the right to cast a vote? If so, then it's logical that the proxy giver could participate in other things such as a Q&A session but not vote (which raises the question of why someone would want to do that).

If the text of the proxy statement is more general and says that the proxy giver is allowing someone else to act in their behalf, then it may mean that the giver can't participate in the meeting at all, only observe.

But all of this still raises the question: why? Generally proxies are used by people who can't attend the meeting, or by an owner who needs to appoint an agent (physical disability or cognitive issues, LLC, etc.).

As far as the question of whether or not the proxy holder must be present in person to vote, this depends on how you define "in person" and whether or not in-person meetings are required. In other words, it depends.

(If "in person" can apply to Zoom meetings, how the heck can you tell if a person logs in and then goes off to watch TV? You can't.)
MaxB4
(California)

Posts:1601


08/08/2021 11:32 AM  
Having been a Inspector of Elections for some 13 years, here is part of the procedure for checking owners in.

1. Owners arrive to meeting and will sign-in on sheets provided. If they haven't voted, they are given an opportunity to cast a ballot. They may, but are not required to cast a ballot. They are allowed to just show up and be counted toward.
2. Inspector(s) will have a list printed out highlighting all the names of owners who have turned in ballots. In 13 years, I have never conducted an election that used proxies.
3. If the owner who signed in doesn't cast a ballot, they are just counted towards quorum. They are allowed to vote to adjourn, if such a motion comes up.

Here is what the state legislators are considering, 1) having a check box to allow owners to have the ability, while not present, to vote to adjourn if quorum is not initially met, 2) eliminate quorum for the election of directors altogether, 3) eliminate proxies once and for all.

Kerry, stated Mail-in/absentee ballots have been permitted since 2006, but they are not " required" to be mailed in in CA.. Ballots MUST be mailed to owners, they can't be delivered electronically. The owner can mail them back, deliver to the address on the envelope, or return to the meeting, if held in person. California has required, since 2007.

Elections. Elections must be conducted by an Inspector of Election and must be done by secret ballot with ballots mailed 30 days in advance of the meeting. Boards must adopt election rules and the rules must be consistent with the association's governing documents. Ballots count toward quorum. Ballots must be opened and counted by the Inspector in front of the membership. Previously, you attended a meeting in person, or by proxies. This now gave a third option. You don't have to show up, but your ballots does count towards quorum. BUT, you have no rights to vote on a motion, unless you have signed a proxy and given it to another member to vote on your behalf.

In regards to proxies, the proxyholder must be in attendance for the proxies to be valid. They also have to be verified. If doing the meeting via Zoom, how are they verified? They could hold up in court, if the intent, during these circumstances, was valid.
AugustinD


Posts:1920


08/08/2021 11:42 AM  
Posted By JohnC46 on 08/08/2021 10:40 AM
Though I have never heard of an owner attending a meeting and letting their prior ballot or proxie stand, but as I think about it I say it is proper.
My question would be do they still have all the rights of an owner signed in or are they a non-entity? My initial blush is unless they rescind their ballot/proxie is they are a non-entity as in they cannot participate, only observe.
For California HOA/COA proxies, to me state statute seems to say what is said above. The interested reader might wish to review:

https://www.davis-stirling.com/HOME/Statutes/Corp-Code-7613

https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5130

Of note is that the davis-stirling site's attorney authors encourage HOAs/COAs to get rid of proxies. No doubt on account of all the confusion described so well by EdwardD4 here. Davis-stirling.com's attorney authors also encourage HOAs/COAs getting rid of membership meeting quorum requirements. It sure might save the courts some trouble.

Regarding "presence" at Zoom meetings, yes, someone can log in without displaying her or his face and then go off and do all manner of things. But if EdwardD4's HOA's directors were not even logged in, well damn it, these directors are not present; these directors cannot vote the proxies they were assigned; and if someone who was logged in motioned to adjourn to a later date; then I am prepared to help EdwardD4 get his second membership meeting with reduced quorum.

JohnC46
(South Carolina)

Posts:11665


08/08/2021 1:10 PM  
Just because Edward got his lunch handed to him via proxies, does not mean proxies are bad. What it means is he got
out foxed. Do not blame the messenger for the message.

I have lived in 5 HOA's is 3 states (SC, MA, IL) and without proxies, we would have not been able to bring change as most do not care. In my present HOA, we would be hard pressed to reach quorum (20%) without soliciting proxies. We typically get no more then 10 to 15 to attend out Annual Meeting in person and we need 25 for Quorum. The first amendments we made when we owners took over was to change quorum from 50% to 20% and without proxies, we would not have been able to do so. I look at proxies as an absentee ballot especially true in a non-ballot state such as SC.

Some people say, as in public voting, quorums are not needed but in a corporation (which we are), we are all "in business" together and that is the difference. We have to guard against a minority controlling things.
MaxB4
(California)

Posts:1601


08/08/2021 1:21 PM  
Posted By JohnC46 on 08/08/2021 1:10 PM
Just because Edward got his lunch handed to him via proxies, does not mean proxies are bad. What it means is he got
out foxed. Do not blame the messenger for the message.

I have lived in 5 HOA's is 3 states (SC, MA, IL) and without proxies, we would have not been able to bring change as most do not care. In my present HOA, we would be hard pressed to reach quorum (20%) without soliciting proxies. We typically get no more then 10 to 15 to attend out Annual Meeting in person and we need 25 for Quorum. The first amendments we made when we owners took over was to change quorum from 50% to 20% and without proxies, we would not have been able to do so. I look at proxies as an absentee ballot especially true in a non-ballot state such as SC.

Some people say, as in public voting, quorums are not needed but in a corporation (which we are), we are all "in business" together and that is the difference. We have to guard against a minority controlling things.



Isn't 20% considered a minority?
JohnC46
(South Carolina)

Posts:11665


08/08/2021 1:39 PM  
Posted By MaxB4 on 08/08/2021 1:21 PM
Posted By JohnC46 on 08/08/2021 1:10 PM
Just because Edward got his lunch handed to him via proxies, does not mean proxies are bad. What it means is he got
out foxed. Do not blame the messenger for the message.

I have lived in 5 HOA's is 3 states (SC, MA, IL) and without proxies, we would have not been able to bring change as most do not care. In my present HOA, we would be hard pressed to reach quorum (20%) without soliciting proxies. We typically get no more then 10 to 15 to attend out Annual Meeting in person and we need 25 for Quorum. The first amendments we made when we owners took over was to change quorum from 50% to 20% and without proxies, we would not have been able to do so. I look at proxies as an absentee ballot especially true in a non-ballot state such as SC.

Some people say, as in public voting, quorums are not needed but in a corporation (which we are), we are all "in business" together and that is the difference. We have to guard against a minority controlling things.



Isn't 20% considered a minority?



Probably a bad choice of words as it is a minority. I supported it so business could be done including elections. We are still 51% of all owners for a Bylaw change and 66% of all owners for a Covenant change and that is the real protection.
AugustinD


Posts:1920


08/08/2021 1:58 PM  
Posted By JohnC46 on 08/08/2021 1:10 PM
Just because Edward got his lunch handed to him via proxies, does not mean proxies are bad. What it means is he got
out foxed. Do not blame the messenger for the message.
If the directors holding the 21 proxies did not show up for the meeting, and yet their vote was somehow counted anyway, this is not outfoxing. It's violating the covenants and state law and cheating.
MaxB4
(California)

Posts:1601


08/08/2021 2:11 PM  
Posted By AugustinD on 08/08/2021 1:58 PM
Posted By JohnC46 on 08/08/2021 1:10 PM
Just because Edward got his lunch handed to him via proxies, does not mean proxies are bad. What it means is he got
out foxed. Do not blame the messenger for the message.
If the directors holding the 21 proxies did not show up for the meeting, and yet their vote was somehow counted anyway, this is not outfoxing. It's violating the covenants and state law and cheating.



So which covenant or state law was violated.
KerryL1
(California)

Posts:8729


08/08/2021 2:17 PM  
To make my words clearer: Proxies certainly are counted towards quorum.

An owner who attends the Annual Mtg. & election AND submits a ballot OR proxy AT the meeting, delivered to the manager's office before the meeting, OR mails it in, counts toward quorum. An owner who submits a proxy is counted towards quorum, i.e, a proxy is in practical terms, a "ballot."

An Owner who attends the annual meeting, but has not submitted a ballot or proxy, and does not submit a balloter proxy before the polls are closed by a motion of the membership, does not count towards quorum for the election. As an Owner, they can participate in any other aspect of the annual meeting of the members.

Max's writing is more confusing than mine (I apologize for mine), He wrote: "They may, but are not required to cast a ballot. They are allowed to just show up and be counted toward. [sic]." I assume he meant count towards quorum, but....???? THEN he wrote in the same post: "Ballots count toward quorum." Now, he stated very early on in this thread that an owner who didn't vote or give a proxy, but who attends the annual meeting counts toward quorum for purposes of the election that on the agenda.

I disagreed and disagree with Augustin too: From the 2020 state statute changes to HOA elections: "If a quorum is required by the governing documents, each ballot received by the inspector of elections shall be treated as a member present at a meeting for purposes of establishing a quorum." This statute superseded CA Corporations Codes and HOA's bylaws language by w emphasizing "v "ballots," not presence at a meeting, which hasn't been required in CA since 2006.

In CA we only have HOAs, no COAs, etc. Does make things simpler.

I'd be happy to see what can be done with Augustin's remarks that Edward can do something about the so-called proxy-holders at his annual meeting not being present at the meeting. But Edward needs to answer the questions first that Augie posed.


AugustinD


Posts:1920


08/08/2021 2:21 PM  
Posted By MaxB4 on 08/08/2021 2:11 PM
Posted By AugustinD on 08/08/2021 1:58 PM
Posted By JohnC46 on 08/08/2021 1:10 PM
Just because Edward got his lunch handed to him via proxies, does not mean proxies are bad. What it means is he got
out foxed. Do not blame the messenger for the message.
If the directors holding the 21 proxies did not show up for the meeting, and yet their vote was somehow counted anyway, this is not outfoxing. It's violating the covenants and state law and cheating.



So which covenant or state law was violated.
Pay me and I will tell you the obvious.
AugustinD


Posts:1920


08/08/2021 2:33 PM  
Posted By KerryL1 on 08/08/2021 2:17 PM

An owner who attends the Annual Mtg. & election AND submits a ballot OR proxy AT the meeting, delivered to the manager's office before the meeting, OR mails it in, counts toward quorum. An owner who submits a proxy is counted towards quorum, i.e, a proxy is in practical terms, a "ballot."
One of the problems in this thread is misuse of the term "proxy." (I am pretty sure I have misused it here and there as well.)

Owner Jane Doe serves as a "proxy" on behalf of Owner John Smith, who gave Jane Doe a proxy form that John Smith signed, assigning Jane as his "proxy" for the meeting. No other owners assign a proxy to Jane Doe. If Owner Jane Doe is present at the meeting, she can now cast two votes on each issue to be voted on and count as two people for quorum purposes.

I disagreed and disagree with Augustin too: From the 2020 state statute changes to HOA elections: "If a quorum is required by the governing documents, each ballot received by the inspector of elections shall be treated as a member present at a meeting for purposes of establishing a quorum." This statute superseded CA Corporations Codes and HOA's bylaws language by w emphasizing "v "ballots," not presence at a meeting, which hasn't been required in CA since 2006.
I think you are far more competent at reasoning than what the above indicates. As I posted earlier, there is nothing in the statute section that says it supersedes other parts of California statutes and a HOA/COA's bylaws regarding quorum. I believe you are well-acquainted with statute sections that do say they override what Bylaws say.

I made my points. We disagree. No point in dragging out the disagreement further.
EdwardD4
(California)

Posts:42


08/08/2021 2:44 PM  
Last years election in 2020, no board members were present other than members, the association manager and 1 inspector of elections. The only thing the inspector of election did was provide us w the number of ballots and that we did not meet quorum. We attempted to ask her questions, however the Association manager would not allow us to talk to her and stayed she did not want to put her in that legal position. I told the manager that our bylaws state that the quorum should be dropped and she disregarded my concerns and adjourned the meeting. I did not use the correct terminology by saying motion, however my concerns are valid and she should have addressed them instead of re-electing them by telling us the board will remain in place till next year and thanked us for our participation.
EdwardD4
(California)

Posts:42


08/08/2021 3:10 PM  
The 2021 election was this past Monday. Many members were present including 3 board members that were there. The inspector of elections different from last year via zoom said we failed to meet the quorum and several members made a motion adjourn the meeting and drop the quorum to 25.5%. The 3 board members who were present made a motion not to adjourn. They commented on the 21 proxies that the inspector of elections had that gave the board the right to also not adjourn the meeting and drop the quorum.

So, here is another question. I do not think the proxies were counted towards a quorum, and was only for the sole purpose not to adjourn the meeting to another time. We required 109 ballots, received 75. Motions made on both sides, however the proxies and 3 board members motion won the vote not to adjourn so the inspector of elections is going to validate the proxies (which can easily be fake) and give us determination in the coming weeks.

My current argument is to contest the meeting because they mailed out the incorrect meeting ID, passcode and phone number which was also incorrect on the calendar on our managements properties website. They did have the correct one on the clubhouse door, however nobody looks at that and we have a lot of renters. Many of them leaving because of things that go on here
KerryL1
(California)

Posts:8729


08/08/2021 3:54 PM  
Yes, I don't understand proxies at all and don't even know if the poi Ural is spelled this way. But you & I agree, Augustin that proxies count towards quorum. I do NOT disagree that a member actually y voting and holding a proxy for another is two votes towards quorum.

I solely was writing about an owner who attends an Annual Mtg. to elect directors. The owner does not and has not cast a ballot, nor does she submit a proxy for someone else. Her mere presence does not count towards quorum.

Now, I'll read Edward's updates.
MaxB4
(California)

Posts:1601


08/08/2021 4:43 PM  
Posted By KerryL1 on 08/08/2021 3:54 PM
Yes, I don't understand proxies at all and don't even know if the poi Ural is spelled this way. But you & I agree, Augustin that proxies count towards quorum. I do NOT disagree that a member actually y voting and holding a proxy for another is two votes towards quorum.

I solely was writing about an owner who attends an Annual Mtg. to elect directors. The owner does not and has not cast a ballot, nor does she submit a proxy for someone else. Her mere presence does not count towards quorum.

Now, I'll read Edward's updates.



Plural of Proxy is Proxies.

Check with your association lawyer on what counts towards quorum, because you are wrong and this is something you should know IF in fact you wrote your Election Rules.

I am really looking forward to seeing your responses to Edward's updates.
MaxB4
(California)

Posts:1601


08/08/2021 5:08 PM  


Owner Jane Doe serves as a "proxy" on behalf of Owner John Smith, who gave Jane Doe a proxy form that John Smith signed, assigning Jane as his "proxy" for the meeting. No other owners assign a proxy to Jane Doe. If Owner Jane Doe is present at the meeting, she can now cast two votes on each issue to be voted on and count as two people for quorum purposes.



It may not be true, it would depend on the type of proxy and the language stated in the proxy. In Edward's case it would only be used for the purpose of voting on the motion whether to adjourn a meeting to a new date whereas quorum would be reduced to 25%.
AugustinD


Posts:1920


08/08/2021 5:53 PM  
KerryL1, thank you for elaborating with regard to proxies.
Posted By KerryL1 on 08/08/2021 3:54 PM
I solely was writing about an owner who attends an Annual Mtg. to elect directors. The owner does not and has not cast a ballot, nor does she submit a proxy for someone else. Her mere presence does not count towards quorum.
I do not know how you can disregard the phrasing like "represented in person or by proxy, shall constitute a quorum" in statutes, EdwardD4's covenants and where Robert's Rules applies, in Robert's Rules.
AugustinD


Posts:1920


08/08/2021 5:56 PM  
Posted By EdwardD4 on 08/08/2021 3:10 PM
My current argument is to contest the meeting because they mailed out the incorrect meeting ID, passcode and phone number which was also incorrect on the calendar on our managements properties website. They did have the correct one on the clubhouse door, however nobody looks at that and we have a lot of renters. Many of them leaving because of things that go on here
Sounds like incorrect notice to me, and also, easily proven. Document everything. Forward to IDR and maybe more.
MaxB4
(California)

Posts:1601


08/08/2021 5:59 PM  
Civil Code Section §5115(d) (d) A quorum shall be required only if so stated in the governing documents or other provisions of law. If a quorum is required by the governing documents, each ballot received by the inspector of elections shall be treated as a member present at a meeting for purposes of establishing a quorum.

This is what my old Bylaws said about quorum prior to us eliminating quorum. These are dated 2001, prior to secret ballots.

Section 5.7 Quorum. The presence in person or by proxy of a majority of the total voting power of the Association entitled to vote at any meeting shall constitute a quorum for the transaction of business. The Members present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough voting power to leave less than a quorum. In the event any meeting of Members cannot be held because a quorum is not present, the Members present, either in person or by proxy, may adjourn the meeting to a time not less than five (5) days nor more than thirty (30) days from the time of the original meeting date, at which meeting the quorum requirement shall be twenty-five percent (25%) of the total voting power of the Association; provided, however, if after adjournment a new date is fixed for the adjourned meeting, notice of the time and place of the adjourned meeting shall be given to the Members in the manner prescribed for regular meetings; provided further, that in the event the quorum requirement becomes twenty-five percent (25%) of the total voting power of the Association, then the only matters that may be voted upon at any meeting actually attended in person or by proxy by one-third (1/3) or less of the voting power are matters of which notice of the general nature of which was given in the notice of meeting.

Section §5115(d) was added to add ballots to count toward quorum, not eliminate in person or proxies from the same.

So, now you have a problem. The 75 ballots that Edward's HOA turned in, only those that actually showed up for the Zoom meeting have the opportunity to vote on whether to adjourn to a new date with lower quorum. They were never given the chance. That can be changed by adding a checkbox on the ballots, stating, by checking this box, if a motion is made to adjourn the meeting to a new date at which time quorum will be reduced to 25%, then I vote in the affirmative. This works only if a Board allows the ballot to be worded in such a manner.

Another issue is Section §511(a) states all elections and then some other things shall be held by secret ballot. A proxies is not a form of secret balloting. The owners signs a proxy, make it a general one, to vote in any manner the assigned proxyholder wishes. Normally it is the owner who only know how they voted, but in the case of a proxy, only the proxyholder knows how the proxies they collected voted.




MaxB4
(California)

Posts:1601


08/08/2021 6:08 PM  
Posted By JohnC46 on 08/08/2021 1:39 PM
Posted By MaxB4 on 08/08/2021 1:21 PM
Posted By JohnC46 on 08/08/2021 1:10 PM
Just because Edward got his lunch handed to him via proxies, does not mean proxies are bad. What it means is he got
out foxed. Do not blame the messenger for the message.

I have lived in 5 HOA's is 3 states (SC, MA, IL) and without proxies, we would have not been able to bring change as most do not care. In my present HOA, we would be hard pressed to reach quorum (20%) without soliciting proxies. We typically get no more then 10 to 15 to attend out Annual Meeting in person and we need 25 for Quorum. The first amendments we made when we owners took over was to change quorum from 50% to 20% and without proxies, we would not have been able to do so. I look at proxies as an absentee ballot especially true in a non-ballot state such as SC.

Some people say, as in public voting, quorums are not needed but in a corporation (which we are), we are all "in business" together and that is the difference. We have to guard against a minority controlling things.



Isn't 20% considered a minority?



Probably a bad choice of words as it is a minority. I supported it so business could be done including elections. We are still 51% of all owners for a Bylaw change and 66% of all owners for a Covenant change and that is the real protection.



So, if your documents are protected from a minority, why the need for quorum at all?
AugustinD


Posts:1920


08/08/2021 6:25 PM  
EdwardD4, did your HOA/COA publish Election Rules, as required by California Civil Code section 5105? The statute section has many requirements. See https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5105 .
MaxB4
(California)

Posts:1601


08/08/2021 6:29 PM  
Posted By AugustinD on 08/08/2021 6:25 PM
EdwardD4, did your HOA/COA publish Election Rules, as required by California Civil Code section 5105? The statute section has many requirements. See https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5105 .



Can you elaborate on "publish"?
AugustinD


Posts:1920


08/08/2021 6:55 PM  
Posted By MaxB4 on 08/08/2021 6:29 PM
Can you elaborate on "publish"?
If you are still not paying, then no, I won't be elaborating.

Why don't you check in with EdwardD4 by private email and wangle yourself into becoming his HOA's next Election Inspector? These turkeys need to be muscled into running a second annual meeting with a reduced quorum. Plus I don't like the signs of director self-dealing EdwardD4 has described.
KerryL1
(California)

Posts:8729


08/08/2021 7:01 PM  
The Zoom angle is the only one that seem plausible. But how does Edward pursue this? However sleazy the rest, it seems legal.

Another approach might be is that all ballots in CA HOAs must be available for inspection by any owner for a year. I assume this includes proxies.

Edward must read his election rules that should have been distributed a few months before the election of last year (2020).

Have you seen them, Edward?
Where are they at your HOA?

Ours are on our web site in the Owners' protected area. They are over 10 pages long. They should give detailed info about inspecting the ballots after the election.
EdwardD4
(California)

Posts:42


08/08/2021 7:42 PM  
Our ballots and Proxies are in San Digeo over 45 mins away. I’ll tell you how shady this is, I need to pay $200 an hr to inspect them minimum 2 hrs. How does that make any sense?

When I took them to court and won last year, they want to charge me $200 to pull records from storage to inspect. I have to pay via cashiers check to management company. They make it as hard as possible to inspect and charge me the max amount they can charge by law.

https://www.davis-stirling.com/HOME/HOA-Records-Subject-to-Inspection

MaxB4
(California)

Posts:1601


08/08/2021 8:26 PM  
Posted By AugustinD on 08/08/2021 6:55 PM
Posted By MaxB4 on 08/08/2021 6:29 PM
Can you elaborate on "publish"?
If you are still not paying, then no, I won't be elaborating.


You sound like you work for Edward's management company!

For the record, Election Rules must be either mailed to each owner or posted on an internet website, preferably the association's and that website must be identified with the ballot material mailed out.

The answer to the question regarding proxies is that there is no requirement in the covenants, state law or parliamentary procedures for the proxyholder to be present at the meeting. If required, they can be found in Election Rules adopted by the Board. My set requires them to be present at the meeting.
MaxB4
(California)

Posts:1601


08/08/2021 8:29 PM  
Posted By EdwardD4 on 08/08/2021 7:42 PM
Our ballots and Proxies are in San Digeo over 45 mins away. I’ll tell you how shady this is, I need to pay $200 an hr to inspect them minimum 2 hrs. How does that make any sense?

When I took them to court and won last year, they want to charge me $200 to pull records from storage to inspect. I have to pay via cashiers check to management company. They make it as hard as possible to inspect and charge me the max amount they can charge by law.

https://www.davis-stirling.com/HOME/HOA-Records-Subject-to-Inspection




If you want help, my email address is [email protected] No, I won't wangle myself into becoming your HOA's next Election Inspector, my dance card is full.
AugustinD


Posts:1920


08/09/2021 6:13 AM  
Posted By MaxB4 on 08/08/2021 8:26 PM

The answer to the question regarding proxies is that there is no requirement in the covenants, state law or parliamentary procedures for the proxyholder to be present at the meeting.
Nope, not so. For a proxy holder to submit votes on behalf of another, the proxy holder must be present at the meeting.

I know you do no not understand this. I am happy to agree to disagree, rather than expending energy to explain the obvious, which you will reject out of hand anyway. [shrug]
JohnT38
(South Carolina)

Posts:794


08/09/2021 6:26 AM  
For the Carolinas one lawyers opinion seems to indicate the proxy holder has to attend the meeting:

A proxy can typically only be used by the person named and is of no use if that person misses the meeting.


For the full article see https://lawfirmcarolinas.com/blog/proxies-and-proxy-voting-at-membership-or-board-meetings/
MaxB4
(California)

Posts:1601


08/09/2021 10:20 AM  
In California, elections are required to be conducted by secret ballot. If a proxy is used, it may need to be verified prior to the meeting by the inspector or the Secretary, based on the Election Rules for each association. Since California requires elections to be conducted using a two-envelope secret ballot system, the proxies must be converted to a secret ballot. This can be done prior to the meeting, with the inspector, once the proxy has been verified. Can it be done at the same time as the meeting, yes, again, once the proxy has been verified.

In a case where the proxy is being used to adjourn or not adjourn a meeting, then, yes, the proxyholder must be present. But, this is written into the Election Rules, again, only if proxies are allowed within that association. There is no Covenant, no State Law or parliamentary procedure mandating their presence.

The reason Augie can respond is because he can't find it.

This is from my friends at www.davis-stirling.com.........https://www.davis-stirling.com/HOME/Proxy-Rules

Remember, these are just sample rules, as you will notice there are no citations for anything.
AugustinD


Posts:1920


08/09/2021 10:59 AM  
Posted By MaxB4 on 08/09/2021 10:20 AM
In California, elections are required to be conducted by secret ballot. If a proxy is used, it may need to be verified prior to the meeting by the inspector or the Secretary, based on the Election Rules for each association. Since California requires elections to be conducted using a two-envelope secret ballot system, the proxies must be converted to a secret ballot.
A proxy (or proxy form) is not the same as a ballot. John Smith cannot attend the annual meeting and does not want to submit a ballot by mail. Smith assigns Jane Doe a proxy. Jane attends the annual meeting. Jane receives a ballot to vote herself. She also receives a ballot to vote on behalf of John Smith, as John's proxy. Both ballots should be secret as required by California law and bylaws.
This is from my friends at www.davis-stirling.com
Oh come on. You're on extensive record about the davis-stirling site: The site's attorneys are your friends when you like what they say. They are your enemies, to be disparaged, when you do not like what they say.
.........https://www.davis-stirling.com/HOME/Proxy-Rules
Yup, I saw that. It's guidance, not law. No doubt it's guidance because the vocabulary surrounding "proxy" is confusing to people. People actually need to be told the definition of "proxy."

A number of law firm sites say that a proxy holder has to be present in order to vote on her/his own behalf or on behalf of anyone who assigned her/him a proxy.

I find no case law on the subject. At least one law firm site said similar: The attorney knew of no case law on the subject. It's no wonder why.

Regardless, EdwardD4 clarified that directors attended the 2021 Zoom meeting. Ceteris paribus, these directors had every legal right to vote their proxies.

Whether the meeting was lawfully noticed is another matter.



KerryL1
(California)

Posts:8729


08/09/2021 11:13 AM  
I'l ry again, Edward: Have your read your HOA's election rules? Where are they kept? Or, were they sent to each owner? $200 does not seem "reasonable" to inspect ballots (and the outside envelopes) that should be in a single place for one year.

Records older than the past two years + the current year, which are all the Assn. needs to provide to you legally, are a different story and probably require extra time to put together.
MaxB4
(California)

Posts:1601


08/09/2021 11:28 AM  
----So, if Jane is voting for John, how is John's ballot a secret to Jane? What if this occurred for 21 owners. All election material is reviewable by an owner, including
ballots and proxies. A secret ballot would/should not identify the voter, but a proxy will, and it may very well show who they voted for.

---=Yes, they are my friends and my enemy. I have given them praise and it is shown on their website, they have also tried to erroneously tried to sue me. So, yes, I have a
love/hate relationship with them.

----Corporations Code §7514. Voting by Proxy or Written Ballot.

(a) Any form of proxy or written ballot distributed to 10 or more members of a corporation with 100 or more members shall afford an opportunity on the proxy or form of
written ballot to specify a choice between approval and disapproval of each matter or group of related matters intended, at the time the written ballot or proxy is
distributed, to be acted upon at the meeting for which the proxy is solicited or by such written ballot, and shall provide, subject to reasonable specified conditions,
that where the person solicited specifies a choice with respect to any such matter the vote shall be cast in accordance therewith.

(b) In any election of directors, any form of proxy or written ballot in which the directors to be voted upon are named therein as candidates and which is marked by a
member "withhold" or otherwise marked in a manner indicating that the authority to vote for the election of directors is withheld shall not be voted either for or against
the election of a director.

(c) Failure to comply with this section shall not invalidate any corporate action taken, but may be the basis for challenging any proxy at a meeting or written ballot and
the superior court may compel compliance therewith at the suit of any member.
AugustinD


Posts:1920


08/09/2021 12:18 PM  
Posted By MaxB4 on 08/09/2021 11:28 AM
----So, if Jane is voting for John, how is John's ballot a secret to Jane?
It appears to me that California statutes dictate what "secret" is. Jane attending the meeting with a proxy in hand that was assigned by John, and so knowing how John will vote, is not a violation of the statutes' secrecy requirements
What if this occurred for 21 owners. All election material is reviewable by an owner, including ballots and proxies. A secret ballot would/should not identify the voter, but a proxy will, and it may very well show who they voted for.
(Noted regarding Corp Code 7514.) I would say that the statutory requirements for secrecy appear to pertain strictly to ballots, not proxy forms. Some may be annoyed by this. I say, "It is what it is. An owner who assigns a proxy may lose some confidentiality by indicating on the proxy form ____, but this appears to be lawful at present. Besides, the owner who chooses to assign a proxy to someone else is making a choice to forego secrecy and not submit the (secret) ballot that California now requires HOAs/COAs to send out to all members.

---=Yes, they are my friends and my enemy. I have given them praise and it is shown on their website, they have also tried to erroneously tried to sue me.
Huh.

This site sure does not lack for gossip.
MaxB4
(California)

Posts:1601


08/09/2021 1:22 PM  
Augie,

You wrote, "From my experience, and writing as a non-attorney but someone who reads a lot on subjects like this".

I read Jack Nickalus's fine book "Golf My Way" over and over and over again, and it never improved my golf game, but practice did.

EdwardD4
(California)

Posts:42


08/09/2021 9:14 PM  
Do you all have anything left in you for this thread? That’s why proxies should be abolished. Haha


1. INTRODUCTION
These Election and Voting Rules (“Rules”) establish certain procedural rules for the successful management of membership meetings and implement the relevant provisions of the Association's Bylaws, the California Civil Code, and the California Corporations Code concerning membership elections and membership voting.
2. EQUAL ACCESS
If any candidate or member advocating a point of view is provided access to Association media, newsletters, or Internet Web sites during a campaign, for purposes that are reasonably related to that election, equal access shall be provided to all candidates and members advocating a point of view, including those not endorsed by the Board, for purposes that are reasonably related to the election. The Association shall not edit or redact any content from these communications; provided, however, the Association shall not be responsible or liable for the content of any such communications, and the Association may include a statement in the communication specifying that the candidate or member, and not the Association, is responsible for the content.
Equal access to common area meeting space, if any, shall exist during a campaign, at no cost, to all candidates, including those who are not incumbents, and to all members advocating a point of view, including those not endorsed by the Board, for purposes reasonably related to the election.
3. USE OF ASSOCIATION FUNDS FOR CAMPAIGN PURPOSES PROHIBITED
Association funds shall not be used for campaign purposes in connection with any Association Board election. Funds of the Association shall not be used for campaign purposes in connection with any other Association election except to the extent necessary to comply with duties of the Association imposed by law. As set forth in Civil Code Section 5135, for the purposes of this section "campaign purposes" include, but are not limited to, the following:
a. Expressly advocating the election or defeat or any candidate that is on the Association election ballot.
b. Including the photograph or prominently featuring the name of any candidate on a communication from the Association or its board, excepting the ballot and ballot materials, within 30 days of an election, provided that this is not a campaign purpose if the communication is one for which subdivision (a) of Civil Code Section 5105 requires that equal access be provided to another candidate or advocate.
4. CANDIDATE QUALIFICATIONS AND NOMINATION PROCEDURES
The Board of Directors consists of five (5) persons. Only persons who are not disqualified from nomination as a
candidate for any of the reasons set forth below are qualified to be elected to the Board of Directors.
Subject to the requirement in Civil Code Section 5105(e) to provide the opportunity to engage in internal dispute resolution, the following persons are disqualified from nomination as a candidate:
a. Any nominee who is not a member of the Association. If title is held by a legal entity that is not a natural person, the governing authority of that legal entity shall have the power to appoint a natural person to be a member of the Association for purposes of Sections 5100 through 5145;
b. Any nominee who has been a member of the Association for less than one year;

c. Any nominee who, if elected, would serve on the Board at the same time as another person who holds a joint ownership interest in the same condominium unit as the nominee and the other person is either properly nominated for the current election or an incumbent director;
d. Any nominee who discloses, or if the Association is aware or becomes aware of, a past criminal conviction that would, if the nominee was elected, either prevent the Association from purchasing the fidelity bond coverage required by Section 5806 or terminate the Association’s existing fidelity bond coverage.
e. Subject to subparagraph (f) below, a nominee for a Board seat, and a Director during his or her Board tenure, must be current in the payment of regular and special assessments. A nominee shall be disqualified from nomination for nonpayment of regular and special assessments, but may not be disqualified for nonpayment of fines, fines renamed as assessments, collection charges, late charges, or costs levied by a third party (e.g., management, or a collection firm).
f. The nominee shall not be disqualified for failure to be current in payment of regular and special assessments if any of the following circumstances are true:
i. The nominee has paid the regular or special assessment under protest pursuant to Section 5658; or
ii. The nominee has entered into a payment plan pursuant to Section 5665.
iii. The nominee has not been provided the opportunity to engage in internal dispute resolution (IDR) pursuant to Section 5900.
A person may nominate himself or herself for election by submitting his or her name as a candidate using the candidacy form prescribed by the Association, provided the form is received by the date prescribed. Nominations (including self-nominations) to be elected to the Board may also be made from the floor of any meeting of the Members at which directors are to be elected; provided, however, only those who give their consent to be nominated may be nominated.
The Association shall, at least 30 days before any deadline for submitting a nomination, provide general notice (Section 4045) of the procedure and deadline for submitting a nomination. Individual notice shall be delivered pursuant to Section 4040 if individual notice is requested by a Member.
The Association shall retain, as association election materials (Section 5200(a)(13)), both a candidate registration list and a voter list. The voter list shall include name, voting power, and either the physical address of the voter’s separate interest, the parcel number, or both. The mailing address for the ballot shall be listed on the voter list if it differs from the physical address of the voter’s separate interest or if only the parcel number is used.
Members shall be permitted to verify the accuracy of their individual information on both lists at least 30 days before the ballots are distributed. The Association or Member shall report any errors or omissions to either list to the inspector or inspectors who shall make the corrections within two business days.
5. VOTING QUALIFICATIONS, THE VOTING POWER OF EACH MEMBERSHIP, AND QUORUM REQUIREMENTS
Each membership shall be entitled to one (1) vote per Unit. In the case of election of directors, each Unit is entitled to one (1) vote for each position to be filled on the Board of Directors, and Members shall be entitled to cumulate their votes for one or more candidates.
If title is held by a legal entity that is not a natural person, the governing authority of that legal entity shall have the power to appoint a natural person to be a member of the Association for purposes of Sections 5100 through

5145.
The Association shall, at least 30 days before the ballots are distributed, provide general notice (Section 4045) of all of the following:
a. The date and time by which, and the physical address where, ballots are to be returned by mail or handed to the inspector or inspectors of elections;
b. The date, time, and location of the meeting at which ballots will be counted; and
c. The list of all candidates’ names that will appear on the ballot.
Individual notice of the above paragraphs shall be delivered pursuant to Section 4040 if individual notice is requested by a member.
6. INSPECTORS OF ELECTION
In accordance with Civil Code Section 5110, the Board of Directors shall appoint either one (1) or three (3) independent third parties to serve as Inspector(s) of Election. An “independent third party” includes, but is not limited to, (a) a volunteer poll worker with the county registrar of voters, (b) a licensee of the California Board of Accountancy, (c) a notary public, or (d) a member of the Association who is neither a director, a candidate for election as a director, nor related to a director or candidate for election as director. An Inspector of Election, and any person appointed by an Inspector of Election to assist in verifying signatures or in counting and tabulating votes, may not be a person, business entity, or subdivision of a business entity who is currently employed or under contract to the Association for any compensable services other than serving as an inspector of elections. The Inspector(s) of Election shall perform the duties set forth below and shall sign a report or certificate evidencing the voting results. The decision of a majority of the Inspectors shall control.
a. Duties
i. Determine the number of memberships entitled to vote and the voting power of each;
ii. Confirm the number of memberships represented at the meeting;
iii. Confirm the existence of a quorum;
iv. Determine the authenticity, validity, and effect of proxies and ballots;
v. Hear and determine all challenges and questions in any way arising in connection with the right to vote;
vi. Count and tabulate all votes;
vii. Determine when the polls shall close;
viii. Determine the result of the voting;
ix. Perform any acts as may be proper to conduct the balloting or election with fairness to all members.
The Inspector(s) of Election shall deliver, or cause to be delivered, at least 30 days before an election, to each member both of the following documents:
of Inspectors of Election:
1. The ballot or ballots; and

2. A copy of the election operating rules. Delivery of the election operating rules may be accomplished by either of the following methods:
a. Posting the election operating rules to an internet website and include the corresponding internet website address on the ballot together with the phrase, in at least 12-point font: “The rules governing this election may be found here:”; or
b. Individual delivery, as described in California Civil Code section 4040.
Notwithstanding any other law, the Association and the Inspector(s) of Election shall not:
i. Deny a ballot to a member of the Association for any reason other than not being a member of the Association at the time the ballots were distributed;
ii. Deny a ballot to a person with general power of attorney for a member. The ballot of a person with general power of attorney for a member of the Association shall be counted if returned in a timely manner.
7. SECRET BALLOT PROCEDURES APPLICABLE TO CERTAIN VOTING AND PROXY USE
Membership voting regarding assessments, election and removal of members to the Board of Directors, amendments to the governing documents, and the proposed grant of exclusive use of common area pursuant to Civil Code Section 4600 (hereinafter “Secret Ballot Topics”) shall be conducted through secret ballot procedures in compliance with Civil Code Section 5100 et seq. The Association may distribute proxies in connection with Secret Ballot Topics, and the Inspector(s) of Election shall be entitled to invalidate any proxy or other document purporting to cast a Member’s vote used in connection with Secret Ballot Topics that does not comply with these Rules and applicable law, including the secret ballot procedures set forth in Civil Code Section 5100 et seq.
A Member may cast his or her vote on a Secret Ballot Topic in person at a meeting, provided the Member casts the vote using a secret ballot in compliance with Civil Code Section 5115. In the event the required quorum is not attained at an initial or adjourned meeting at which secret ballots will be used, and in the event the meeting is adjourned to another date, all secret ballots cast shall carry over until quorum is attained.
In instances where proxies are used, in order to be counted the proxy must (a) identify a proxyholder (who must be in attendance at the meeting for which the proxy is given), (b) contain voting instructions, and (c) be dated and signed by the Member in good standing giving the proxy. The Inspectors may disqualify a proxy that does not satisfy these requirements. Any instruction given in a proxy that directs the manner in which the proxyholder is to cast the vote must be set forth on a separate page of the proxy that can be detached and given to the proxy holder to retain. The proxy holder must cast the Member’s vote by secret ballot in accordance with any instructions the Member provides.
8. VOTING AND COUNTING OF BALLOTS/PROXIES
All votes shall be counted and tabulated by the Inspector(s) of Election in public at a properly noticed open meeting of the Board of Directors or at a properly noticed meeting of the members. Any candidate or other member of the Association may witness the counting and tabulation of the votes from a reasonable distance, as determined by the Inspector(s) of Election. Members may not interfere with the counting and tabulation of the votes, and the Inspector(s) of Election may order any person the Inspector(s) of Election determine to be interfering with the counting and tabulation of votes to leave the area. In accordance with the holding of Chantiles v. Lake Forest II Master Homeowners Association (1995) 37 Cal. App. 4th 914, only the Inspector(s) of Election and the Association’s legal counsel shall be permitted to inspect the proxies during the voting process in those instances in which proxy voting is permitted in order to protect the members’ privacy rights.

No person, including a member of the Association or an employee of the management company, shall open or otherwise review any ballot prior to the time and place at which the ballots are counted and tabulated.
a. Unless otherwise provided in the Notice of Meeting or the Ballot solicitation, as applicable:
i. The voting period for Secret Ballot Topics shall commence when the first ballot is mailed or delivered to an Association Member, and shall end at such time as the Inspector(s) of Election determine the polls close;
ii. With respect to voting at membership meetings on topics other than Secret Ballot Topics, the voting period shall commence at the meeting at such time as the chairperson declares the voting period open and shall end at such time as the Inspector(s) of Election shall determine the polls close; and
iii. With respect to voting through a mail-in ballot on matters other than Secret Ballot Topics, voting shall commence when the first ballot is mailed or delivered to an Association Member and shall end at such time as is specified on the ballot.
b. A ballot shall be irrevocable upon the Association’s receipt of the ballot, and a Member’s submission of a secret ballot shall be deemed to be the Member’s presence at the meeting for purposes of determining the presence of a quorum at the meeting.
c. All questionable proxies and ballots are to be separated for a determination of validity by the Inspectors.
d. If the number of votes cast on a ballot or proxy exceeds the number of permissible votes, the ballot or proxy, for voting purposes, shall be invalid and shall not be counted, but shall be counted for quorum purposes only.
e. When a voting box for a candidate is “checked” or otherwise marked by a non-numerical symbol (e.g., an “X”), and it is the only box “checked” or marked, all of the member's votes shall be counted for that candidate. When fewer boxes are “checked” or marked by a non-numerical symbol on the ballot than the number of directors to be elected, the count shall be one vote per “check” or mark not to exceed the number of authorized votes.
f. If votes are cast on a proxy, but the Member failed to check the box indicating that the proxy is to be voted in accordance with the Member’s instructions, the votes cast shall be counted as marked by the Member, provided there are no conflicting instructions on the proxy and the proxy is otherwise valid.
9. ANNOUNCEMENT OF RESULTS/CUSTODY OF VOTING MATERIALS
The tabulated results of the election shall be promptly reported to the Board of Directors of the Association and shall be recorded in the minutes of the next meeting of the Board of Directors and shall be available for review by members of the Association. Within 15 days following the election, the Board shall give general notice pursuant to Civil Code Section 4045 of the tabulated results of the election.
The sealed ballots, signed voter envelopes, voter list, proxies, and candidate registration list shall at all times be in the custody of the Inspector(s) of Elections or at a location designated by the Inspector(s) until after the tabulation of the vote, and until the time allowed by Section 5145 for challenging the election has expired, at which time custody shall be transferred to the Association. If there is a recount or other challenge to the election process, the Inspector(s) of Election shall, upon written request, make the ballots available for inspection and review by an Association member or the member’s authorized representative. Any recount shall be conducted in a manner that preserves the confidentiality of the vote.
MaxB4
(California)

Posts:1601


08/09/2021 10:04 PM  
Edward

I mentioned that two board members from the same unit could be written into the election rules. Augie stated, sarcastically, that it wasn't relevant. Well, low and below, that provision is in your Election Rules.

It also states that the proxyholder MUST be present at the meeting. Augie contends that it is written into the covenants or state law. It ain't. If required, it would be in your Election Rules. A person who writes Elections Rules and conducts elections in California would know that.

The proxy form must be two pages according to your Election Rules. Otherwise, they are invalid. Also I posted Corporation Code §7514, which states that the proxy, if given to 10% or more of members, must have a yes or no box to adjourn the meeting. If only one choice was given, the proxy is invalid.

Can elections in HOA's be rigged or at the very least conducted improperly, YES, every day of the week and twice on Sundays. Problem is the Board controls the process and the ballot and you have a Board that has been in place for upwards to 25 years.

You have to neat them at their game, know the rules better than they do. You have to sell the community. You have to put in the time.

Good luck!

EdwardD4
(California)

Posts:42


08/09/2021 10:44 PM  
I knew the 2 board members could serve because it says the association “may” not allow it. That’s why members want to run to make changes in our bylaws. It’s a major conflict of interest and they should only allow it in smaller associations like 50 or less in IMO.

The proxyholder (board member) was present to defeat the motion to drop the quorum to 25.5%

Not sure if the proxies were 2 pages

So, apparently the proxies received were 21, not including the motion by the 3 members who went against dropping the quorum.

Not sure about the check box.

My question? Can proxies be solicited to a selected few solely to defeat a motion in dropping the quorum?

So bogus that 75 ballots that were casted did not have a check box to vote on whether or not to drop the quorum. That clearly shows members wanted to have an election.

Next question? Shouldn’t members have the ability to vote on the same matter (dropping the quorum) if the election was done entirely by mail and could not attend? It would appear to me that a check box should have been an option in all ballots.


This was probably the worst time to campaign with COVID. What sucks is all we needed was 34 ballots. If I’m not mistaken, the election company can tell you which units did not cast their ballots if the meeting was to be adjourned to another day correct?
MaxB4
(California)

Posts:1601


08/09/2021 10:55 PM  
4. CANDIDATE QUALIFICATIONS AND NOMINATION PROCEDURES
The Board of Directors consists of five (5) persons. Only persons who are not disqualified from nomination as a
candidate for any of the reasons set forth below are qualified to be elected to the Board of Directors.
Subject to the requirement in Civil Code Section 5105(e) to provide the opportunity to engage in internal dispute resolution, the following persons are disqualified from nomination as a candidate:

c. Any nominee who, if elected, would serve on the Board at the same time as another person who holds a joint ownership interest in the same condominium unit as the nominee and the other person is either properly nominated for the current election or an incumbent director;

This is a disqualification.
EdwardD4
(California)

Posts:42


08/09/2021 11:06 PM  
They don’t play by the rules. They are citing civil code 5100 but did not do it to it’s entirety. I’m doing the best I can to explain how crooked these board members are, and will exhaust all our reserves on using our hoa dues against us with legal counsel backing them because they represent the community.

Keyword “MAY”

(B) Through its bylaws or election operating rules adopted pursuant to subdivision (a) of Section 5105 only, an association “MAY” disqualify a person from nomination as a candidate based on any of the following:

(i) An association may disqualify a nominee if that person discloses, or if the association is aware or becomes aware of, a past criminal conviction that would either prevent the association from purchasing the fidelity bond coverage required by Section 5806 should the person be elected or terminate the association's existing fidelity bond coverage as to that person should the person be elected.
EdwardD4
(California)

Posts:42


08/09/2021 11:08 PM  
Sorry didn’t copy it all.

(iii) If the person, if elected, would be serving on the board at the same time as another person who holds a joint ownership interest in the same separate interest parcel as the person and the other person is either properly nominated for the current election or an incumbent director.
MaxB4
(California)

Posts:1601


08/09/2021 11:09 PM  
Posted By EdwardD4 on 08/09/2021 10:44 PM
I knew the 2 board members could serve because it says the association “may” not allow it. That’s why members want to run to make changes in our bylaws. It’s a major conflict of interest and they should only allow it in smaller associations like 50 or less in IMO.

The proxyholder (board member) was present to defeat the motion to drop the quorum to 25.5%

Not sure if the proxies were 2 pages

So, apparently the proxies received were 21, not including the motion by the 3 members who went against dropping the quorum.

Not sure about the check box.

My question? Can proxies be solicited to a selected few solely to defeat a motion in dropping the quorum?

So bogus that 75 ballots that were casted did not have a check box to vote on whether or not to drop the quorum. That clearly shows members wanted to have an election.

Next question? Shouldn’t members have the ability to vote on the same matter (dropping the quorum) if the election was done entirely by mail and could not attend? It would appear to me that a check box should have been an option in all ballots.


This was probably the worst time to campaign with COVID. What sucks is all we needed was 34 ballots. If I’m not mistaken, the election company can tell you which units did not cast their ballots if the meeting was to be adjourned to another day correct?



1. I responded above on the two owners in same unit, they are disqualified per your election rules.

2. Proxyholder at meeting, OK

3. If not two pages, they are juke

4. Based on Corporate Code §7514, they are juke

5. Nothing on ballot to adjourn means the board controls the outcome.

6. Should members have the ability on the ballot to adjourn if quorum is not initially met, ye, but again, the board controls the ballots and election.

7. You have the ability to inspect the ballots, envelopes and proxies and create a list for yourselves as to who voted and who you need to work on.

8. The process to adjourn is a voice vote. Make a motion, have a second and then vote. The board member would have cast his vote, plus the 21 for the proxies they held. The people who turned in a ballot, but did not attend, were not given an opportunity to adjourn.

People in this country expect that if they cast a ballot, their ballot will be opened and counted. Unfortunately, after the 2020 election, state legislatures across the country are making it more difficult for people to vote. Why should a HOA be any different.

I don't understand, if HOA documents are protected against a minority, what are they afraid of eliminating quorum and proxies for board elections?

MaxB4
(California)

Posts:1601


08/09/2021 11:12 PM  
Posted By EdwardD4 on 08/09/2021 11:06 PM
They don’t play by the rules. They are citing civil code 5100 but did not do it to it’s entirety. I’m doing the best I can to explain how crooked these board members are, and will exhaust all our reserves on using our hoa dues against us with legal counsel backing them because they represent the community.

Keyword “MAY”

(B) Through its bylaws or election operating rules adopted pursuant to subdivision (a) of Section 5105 only, an association “MAY” disqualify a person from nomination as a candidate based on any of the following:

(i) An association may disqualify a nominee if that person discloses, or if the association is aware or becomes aware of, a past criminal conviction that would either prevent the association from purchasing the fidelity bond coverage required by Section 5806 should the person be elected or terminate the association's existing fidelity bond coverage as to that person should the person be elected.




Through their election operating rules they did disqualify that person.
EdwardD4
(California)

Posts:42


08/09/2021 11:29 PM  
If so, they will conjure up an excuse I guarantee it. A story like we could’t cite the entire civil code. People ran because we had an opportunity to replace the majority of the board. You’ll be eaten by the sharks if only 1 or 2 were replaced.

Do these election rules have to be recorded with the state, county or local level?
EdwardD4
(California)

Posts:42


08/09/2021 11:41 PM  
Read (B) then roman numeral (iii). Even if our election rules left out (B) they will fight this till death do they part from the board of directors. Why would the President and his partner (Member at Large) want to play by their election rules and separate? Hehe


(B) Through its bylaws or election operating rules adopted pursuant to subdivision (a) of Section 5105 only, an association “MAY” disqualify a person from nomination as a candidate based on any of the following:

(i) An association may disqualify a nominee if that person discloses, or if the association is aware or becomes aware of, a past criminal conviction that would either prevent the association from purchasing the fidelity bond coverage required by Section 5806 should the person be elected or terminate the association's existing fidelity bond coverage as to that person should the person be elected.

(ii) Failure to be current in the payment of regular and special assessments, which are consumer debts subject to validation. If an association requires a nominee to be current in the payment of regular and special assessments, it shall also require a director to be current in the payment of regular and special assessments. An association may not disqualify a nominee for nonpayment of fines, fines renamed as assessments, collection charges, late charges, or costs levied by a third party. An association shall not disqualify a nominee for failure to be current in payment of regular and special assessments if any of the following circumstances are true:

(I) The nominee has paid the regular assessment or special assessment under protest pursuant to Section 5658.

(II) The nominee has entered into a payment plan pursuant to Section 5665.

(III) The nominee has not been provided the opportunity to engage in internal dispute resolution pursuant to Article 2 (commencing with Section 5900) of Chapter 10.

(iii) If the person, if elected, would be serving on the board at the same time as another person who holds a joint ownership interest in the same separate interest parcel as the person and the other person is either properly nominated for the current election or an incumbent director.

(iv) If that person has been a member of the association for less than one year.
MaxB4
(California)

Posts:1601


08/09/2021 11:44 PM  
Posted By EdwardD4 on 08/09/2021 11:29 PM
If so, they will conjure up an excuse I guarantee it. A story like we could’t cite the entire civil code. People ran because we had an opportunity to replace the majority of the board. You’ll be eaten by the sharks if only 1 or 2 were replaced.

Do these election rules have to be recorded with the state, county or local level?



When creating elections rules, you can be as anal as you want with citing Civil or Corporation or simple such as these election rules comply with section so and so.

These election rules were generated by the board and approved by the board. They can try and change but the membership has the power to overturn. Elections Rules do not have to be recorded with anyone.

You have to learn to finish the process. In essence, this is harder than running for political office.
EdwardD4
(California)

Posts:42


08/10/2021 12:02 AM  
I agree way harder. It’s only a matter of time that they will pull a “point break” on us and take off leaving us w a mess to clean up and all our reserves exhausted. I already requested an IDR today, so we’ll see how they respond.

We pay a custodian to be here 3x/wk for around 3 hrs/day. Our financials show it costs us over $20k for this lady. I need to change my day job. Imagine 9hrs/day at $20,000 = $42.73. Haha
AugustinD


Posts:1920


08/10/2021 7:25 AM  
Posted By MaxB4 on 08/09/2021 10:04 PM

I mentioned that two board members from the same unit could be written into the election rules. Augie stated, sarcastically, that it wasn't relevant. Well, low and below, that provision is in your Election Rules.
Yup, it is. Good thing AdamL1, after repeated requests from myself and others to cite what part of the covenants or law was being broken, and to post the Election Rules, posted the Election Rules. Now quit hijacking the thread and give AdamL1 actual advice to use this Rule.
It also states that the proxyholder MUST be present at the meeting. Augie contends that it is written into the covenants or state law. It ain't.
Hijacker, you have no clue.
AugustinD


Posts:1920


08/10/2021 7:42 AM  
Posted By EdwardD4 on 08/09/2021 11:06 PM
They don’t play by the rules. They are citing civil code 5100 but did not do it to it’s entirety. I’m doing the best I can to explain how crooked these board members are, and will exhaust all our reserves on using our hoa dues against us with legal counsel backing them because they represent the community.

Keyword “MAY”

(B) Through its bylaws or election operating rules adopted pursuant to subdivision (a) of Section 5105 only, an association “MAY” disqualify a person from nomination as a candidate based on any of the following:

(i) An association may disqualify a nominee if that person discloses, or if the association is aware or becomes aware of, a past criminal conviction that would either prevent the association from purchasing the fidelity bond coverage required by Section 5806 should the person be elected or terminate the association's existing fidelity bond coverage as to that person should the person be elected.
EdwardD4 (not AdamL1; pardon),

-- The section numbers above do not match up with the latest version of California Civil Code Section 5105. Use this: https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5105 (the latter site is the same as https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV§ionNum=5105 )

-- The Election Rules as written are legally powerful. It does not matter that California Civil Code says "may." What matters is what the Election Rules (required by statute) end up saying.

-- Do you want to address this particular issue, or do you just want to keep griping here at this forum? If you want to address this, then you should file for IDR immediately. If you want assistance, please post your HOA's procedure for filing for IDR.

-- By far the best approach for you would be to hire an attorney to help you with the IDR process.
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Forums > Homeowner Association > HOA Discussions > Problems with Annual Meeting Quorum and Proxies



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