Proxies

Are you saying you want a ballot so that someone can carry that vote to the meeting (instructed)?

Will you have a ballot by then?
If you take nominations from the floor, that complicates it even further.

Election proxies can be troublesome . . .

Proxies to reach quorum threshold are simpler.

Jack,

There is no set format for a proxy. An Association may design a form in any fashion they want as an option to use. In your instance, it appears that your Association is using a general proxy vs. a directed proxy. IMO we place a statement on there that if there is no name indicated on the proxy form that the individual is authorizing the Board to act as their proxy.

Virginia's non-stock corporation act clearly specifies that a proxy can be anything that can be verifiable. Here is a link to that specific section:
VA § 13.1-847. Proxies.

Of course this section only applies if your Association is incorporated as a non-stock corporation within VA (most are but verify that in your Governing documents). Even if you are not incorporated;

VA Property Owners Association Act, § 55-515.3. Use of technology.

or

The VA Condo Act § 55-79.77.

whichever is applicable, indicate that proxies can be any instrument that is verifiable.

Take a look at The Fairfax County Community Association Manuals proxy section (click the link). It summarizes VA law about proxies in fairly plain language.

My recommendation, If you are not able to attend the meeting - send a directed proxy with someone you trust and who will be willing to educate, if needed, the board about directed proxies vs. general proxies. When I did this the first time, my Board was in an uproar because a directed proxy was never used before. We now use them all the time because more people responded when provided a directed proxy form.

Hope this helps,

Tim
Tim

Jack,

Without seeing the proxy itself, as I said earlier, based on your posting, it sounds like your Association provided a form for a general proxy.

A general proxy is any instrument that authorizes someone to vote how they desire on any issue on the ballot in place of the member. There might be choices identifying who is the proxy representative (like your board did) but if it doesn't specify how a vote should be cast, then it is a general proxy.

A directed proxy is any instrument that authorizes someone to vote in place of the member but specifies how that vote is to be cast.

Typically, when a general proxy is provided to the Board, it is the office of the Secretary that casts the ballots for the Board. Since VA allows nominations from the floor for any election, my Association felt that this could actually give an undue influence to one member. Therefore, we actually pass a resolution each year identifying how any general proxies the Board receives shall be cast.

They actually added something I hadn't thought of, a proxy solely for the purpose of a quorum. If your quorum requirements are high, this is probably why they added that option. Personally, I would consider any proxy where that box was checked to be a directed proxy. This is because the member is directing someone to represent them at the meeting but instructing them not to cast a vote (abstain) on any issue.

To give you an idea of what others are using as proxy forms, I've attached one of our general and a directed proxy forms (removing the name of the Association). The general proxy, in my opinion is lacking drastically. However, it wasn't designed by our current BOD and is not being used any longer.

Hope this helps,

Tim

Tim: For some reason, I get a message on invalid file size when I try to attach a copy of the proxy to this post. Our bylaws say “A proxy may be instructed (directing the proxy holder how to vote) or uninstructed (leaving how to vote to the proxy holder’s discretion).” The proxy is also not the one that is contained in Attachment A to our bylaws. Since I am of the opinion that compliance with the bylaws is mandatory and can be depended upon as a reference as to how things should be done, this proxy is not acceptable. Choices A and B are uninstructed and choice C is not provided for in our bylaws. There is no instructed choice. The fact that incomplete proxies default to the Secretary also concerns me. Such proxies are incomplete and therefore should be invalid. This proxy form facilitates keeping incumbents on the board.

Jack,

An invalid file size indicates that the file you are posting is too large. Typically when this happens a Word file would need to be broken into sections and a photograph or pdf file would need to be a lower quality in order to be attached.


I bolded the key word in your quote. This sentence you quoted is instructing the Association that they must accept either a general or a directed proxy. It does not require that the Association provide you with both type of forms.


VA law (quoted earlier in this thread) specifies that any verifiable notification of proxy is to be valid. This means that an e-mail, photocopy of a letter, a fax, a hand written note in crayon or a form provided by the Association must be accepted. There is no standard format and there is zero requirement that a form tilted "official proxy form" from the Association is not the only one that can be provided at the meeting.


Determining if a proxy is incomplete, has some specific rules with it as well.

If you go to The VA Non-stock Corporation act and click on section 13.1-847.1. Voting procedures and inspectors of elections, you will gain more info (granted your Association needs to be incorporated as a non-profit for this law to apply).


I agree with you on this one. However, there is nothing that prevents you from going door to door soliciting proxies from members and/or encouraging them to attend the meeting themselves. You could also provide a directed proxy to them to fill out, vs. the general proxy form the board provides.

When I first did this, the Board and I had a lot of discussions over it. Once I pointed out the law to them (provided copies with the appropriate sections highlighted) they backed down. Mind you they did not like it one bit, but they did agree that this was the law and they had to comply with it. Like I said, we now provide directed proxies all the time and have had a better participation in proxies then when we only provided a general proxy form.

Tim

Tim,

Can you provide the citations for those two statements? Our last election used mail in ballots and did not permit nominations from the floor. We have an election coming up in May 2011 and I would like to provide this info to the election committee before they draft the election procedures.

Thanks,

Dave

Tim,

Thank you for such a frank and gracious reply. If everyone involved in HOA governance was as willing to admit a mistake, things would run much more smoothly.

Timb4; It is important to also note the recent amendment to the HOA Acts in 55 allowing for the use of verifiable emails for just about any purpose.

That being said, the proxies in the original post are way more complex than my homeowners could handle.

We keep it simple. "This proxy may be used for any and all HOA matters, except changes to the Covenants and By-Laws, that may be brought before the Board of Directors. This proxy shall remain valid until cancelled in writing, or until such time as the lot transfers, or until such time as a person named in it dies. Enter the name of the person you are choosing to represent you.."

I'll tell you my own recent proxy story. But will warn you that my HOA is in Southern California, which, as you may have heard, is not part of the rest of this particular universe. I am a board member. We recently had our yearly meeting, the secretary emailed out proxy forms, urging anyone who could not attend to turn one in. It was a new proxy form, and I was unfamiliar with it. The proxy simply had a paragraph where the HOA member could indicate that they authorized the board to vote for them. I objected! The old proxy had a space where the homeowner could write in who could vote for them, or they could check a box indicating the proxy was for "quorom" only. I asked our PM which was proper; he indicated the California code does not specify, and, basically, the HOA has a choice. He said he usually urges HOA's to use the proxy that does include the quorom option, but said legally we can use either. The CCR's only indicate the a proxy can used for a meeting, and that it can be of "any form," whatever that means! And "it shall not be mandatory that a candidate for election ... be named in the proxy."and it "shall provide members with the opportunity to specify a choice between approval and disapproval of each matter ... to be acted upon." (But it can still be of "any form?") I think this is all vague enough that both our CCR's and "civil code" indicate 1.) that a proxy can be used. 2.) but that the form it can take is deliberately left open to interpretation. -Tom