How can we get our unpopular Director reelected?

EricH8 (Virginia)
Posts: 116

Posted:

The board of directors sent a mailing to all homeowners saying

Background info:
We had a vote last September on removing the entire board of directors. The vote totals were
23 not interested enough to attend the meeting or fill out a proxy form
21 in favor of removing the board
16 opposed to removing the board
Our Bylaws say a director can only be removed by a majority (31) of all (60) owners, not owners present (37) at the meeting.

Possibly the least popular board member is up for reelection at the Jan. 11 annual homeowners meeting. The board has been changing the election procedures unexpectedly in secret meetings based on how events unfold. In the past, call for candidates deadline hasn't been enforced when incumbents go way past the deadline, so we didn't pay attention to the Dec. 3 deadline for candidates to get on the ballot. We had always been able to nominate candidates at the meeting. In the past, our proxy form just sent your representative to the meeting. Now we have received a Directed Proxy Ballot that says: I direct my proxy holder to vote for the following: (censored) or write-in

Yeah, it's not a secret ballot because you have to indicate your vote right there by your own name.
I knows there's a lot of insane issues and I haven't told the half of it but my question for the forum is Can I mail an alternative proxy form to all homeowners that is like our traditional proxy form where there is no place provided for you to vote directly? Could we then say that proxies have come to the meeting without specific instructions who to vote for, so nominations must be allowed from the floor, and a rip roaring discussion / debate about candidates before voting? Of course the mailing will also say who our write in choice is.

Here is, word for word, the letter from the Board that came with the Directed Proxy Ballot:

"Because of a high number of owners unable to attend the annual meetings, there will be no nominations from the floor. This ensures that when you cast your vote via your Proxy Ballot and mail it, you will have your choices and decision carried out. This also prevents undue influence and consideration from only those who may attend the annual meeting. This is the most fair and equitable way to carry out voting for a community of our size and make up (2 bd 1 ba condos). Most other Associations similar to ours demographically follow the same protocol to protect the wishes of non-resident owners."

(My question: Is that true that Most other Associations follow the same protocol? We have 22 or 23 nonresident owners out of 60.)

"Nomination Process
Call for candidate postcards were mailed to every owner allowing 6 weeks for submission of candidate interest forms by those wishing to serve on the board. Only one candidate submitted his candidate application, our current Treasurer and 12-year Board member, (censored)."

"Vote for (censored)
The Board strongly urges you to consider casting your vote to keep (censored) on the Board. His sound judgment, institutional knowledge for our community and long term commitment to fairness in every Board decision continues to make him a valuable member of our community and Board of Directors. We are fortunate to have his continued participation in community matters and hope you will vote for him this election.
If you choose to vote for another owner, there is a write=in section on your proxy ballot. Before choosing him or her as a write in candidate on your proxy ballot, please be sure to contact the owner to confirm his or her willingness and desire to serve on the Board."

More background:
We're supposed to mail these Directed Proxy Ballots to our management company which (in my opinion) has demonstrated strong partisan support for the incumbent board members that hired/protect this company.)

We have a second candidate who could win a fair election.

Here's our Bylaws about Proxies:
Votes may be cast in person or by proxy. Proxies must be filed with the Secretary before or during the appointed meeting. The proxies may require the holder to cast a vote for or against any special proposal set out in the notice calling the meeting. A meeting of the Association may be by proxy ballot, as the Directors may elect, rather than at a formal gathering. Ballots for such meeting must be properly executed and returned in sufficient quantity to constitute a quorum and to pass the proposal specifically propounded on the ballot. The vote of a ballot meeting shall be determined by the Board of Directors within 48 hours of the deadline for return of ballots. Each unit owner shall be notified by mail or other delivery of written notice of the results of the ballot meeting or that a quorum of ballots was not returned, within ten (10) days after the ballots have been counted.

One other question. Is it fair / legal for the Board to say on the Directed Proxy Ballot
"(in the absence of a written name, your proxy will automatically be granted to the President of the Association)"
?

Oregon laws that I have already cited in my arguments and petition for secret ballot:
ORS 100.425
(2) (b) The board of directors must provide owners with at least 10 days’ notice before written ballots are mailed or otherwise delivered. If, at least three days before written ballots are scheduled to be mailed or otherwise distributed, at least 10 percent of the owners petition the board of directors requesting secrecy procedures, subject to paragraph (d) of this subsection, a written ballot must be accompanied by:
(A) A secrecy envelope;
(B) A return identification envelope to be signed by the owner; and
(C) Instructions for marking and returning the ballot.

ORS 100.425 Use of written ballot for approving or rejecting matters subject to meeting of unit owners; procedures; exceptions. (1) Unless prohibited or limited by the declaration, articles of incorporation or bylaws, any action that may be taken at any annual, regular or special meeting of the association of unit owners may be taken without a meeting if the association delivers a written ballot to every association member that is entitled to vote on the matter. Action by written ballot may not substitute for the following meetings:
(b) The annual meeting of an association if more than a majority of the units are the principal residences of the occupants.

FrankL4 (Florida)
Posts: 6

Posted:

It appears, as is the case in Florida, you have a right to include complimentary letters, with the ballots sent to 'away' members. In our last election, the letters submitted by those vying for a position on the BOD did the trick. The former and his V.P lost their bid, by a landslide. In the letters, the sins of the previous administration were listed and the promises of a saner, financially responsible BOD was explained Also in the letters was an entreaty to each voter, to send in the ballot as we are a small association and elections are won by 1 or 2 votes. FrankL4.

EricH8 (Virginia)
Posts: 116

Posted:

Thanks for the reply. Too late for last January's election though. At my HOA, the challengers got a letter out to homeowners, at our own expense, listing sins of the previous administration. Our write-in candidate won 24-21.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Eric,

Welcome to the forum. As you know, there are two types of proxies: Directed - where the proxy representative is directed to cast votes a specific way and General - where the proxy representative is allowed to vote as they think is best.

As you stated, when directed proxies are used, the secrecy associated with casting a vote is effectively gone. The completed ballot will not contain the name of the individual but the proxy would certainly indicate how the individual voted. Personally believe that a directed proxy gives more power to the individual member then a general proxy does. Therefore, I encourage the use of them.

Proxies can typically be in any format and does not require a specific form. Oregon corporate law 60.231 and non-profit corporate law 65.231 addresses proxies.

Proxies must be turned in to the Board prior to the election. Typically, proxy forms are mail in or presented to the board at the actual meeting during the sign in process.

"Can I mail an alternative proxy form to all homeowners that is like our traditional proxy form where there is no place provided for you to vote directly?

Based on Oregon Corporate law, the answer would be yes. You could also solicit that they name you proxy vs. the board.

One other question. Is it fair / legal for the Board to say on the Directed Proxy Ballot "(in the absence of a written name, your proxy will automatically be granted to the President of the Association)"?

Yes. This is a typical statement on proxy form. The Board should (but doesn't always happen) pass a resolution prior to the meeting on how any general proxies given to the Board would be cast.

Hope this helps,

Tim