Write-In Candidate

Laws and HOA governing documents typically do not cover provisions that are usually considered to be covered by common parliamentary procedure. If a case were brought to court to be ruled on by a judge I would expect he would base his decision, in order of precedence, on the law, your governing documents, and accepted parliamentary procedure. Although, sometimes judges have been known to rule in defiance of logic.

If state law and/or your governing documents do not specifically prohibit write-in candidates, then, observing accepted parliamentary procedure, they are allowed.

Deliberative organizations (like HOAs) should follow, at least to some extent, accepted parliamentary procedure, and I think most do in some fashion. Unfortunately, there are some who prefer to make up their own rules and procedures (usually to suit themselves) even though the rules don't exist in writing anywhere. The danger in that is that the rules can change depending who is in authority. I kind of think of it as kids playing a game where they make up the rules, which can change depending on who is playing.

Thanks Bruce and John. It is wise to know your documents.

Another question are faxed copies of proxies valid?
Are they valid if faxed to the proxy holder?
Our HOA Presidents says he will only allow the proxy that was sent in the mail.

Under SC title 33 Corporations, Partnerships and Associations
SECTION 33-7-220. Proxies.

(a) A shareholder may vote his shares in person or by proxy.

(b) A shareholder or his agent or attorney in fact may appoint a proxy to vote or otherwise act for him, including giving waivers and consents, by signing an appointment form or by an electronic transmission of appointment. The electronic transmission must contain or be accompanied by sufficient information to determine that the transmission appointing the proxy is authorized. A proxy must have an effective date. If not dated by the person giving the proxy, the effective date of the proxy is the date on which it is received by the person appointed to serve as proxy, and that date must be noted by the appointee on the appointment form.

(c) An appointment of a proxy is effective when the appointment form or electronic transmission is received by the secretary or other officer or agent authorized to tabulate votes. Unless a time of expiration is otherwise specified, an appointment is valid for eleven months.

But for non profit says:
SECTION 33-31-724. Proxies.

(a) Unless the articles or bylaws prohibit or limit proxy voting, a member may appoint a proxy to vote or otherwise act for the member by signing an appointment form either personally or by an attorney-in-fact.

(b) An appointment of a proxy is effective when received by the secretary or other officer or agent authorized to tabulate votes. An appointment is valid for eleven months unless a different period is expressly provided in the appointment form. However, no proxy is valid for more than three years from its date of execution.

(c) An appointment of a proxy is revocable by the member.

(d) The death or incapacity of the member appointing a proxy does not affect the right of the corporation to accept the proxy's authority unless notice of the death or incapacity is received by the secretary or other officer or agent authorized to tabulate votes before the proxy exercises authority under the appointment.

(e) Appointment of a proxy is revoked by the person appointing the proxy:

John,
Thank you! Yes our By-Laws allow for "written proxy". Doesn't address how they are received. I did check SC Title 33 chapter 31 which doesn't say anything about a faxed proxy.
Is this where you were checking?

Jean

I am not nor do I play a lawyer.

Title 33 is the SC Articles of Incorporation. It has 56 Chapters as part of it. Chapter 31 is for Non-Profit Corporations.

As I understand it, if Title 33 says something is allowed such as electronic transmission of proxies then a specific chapter would have to say electronic transmission is not allowed.

Each chapter does not contain everything Title 33 says. The chapter just clarifies specific rules/laws/whatevers applicable to that type business.

What I would do is show the BOD where Title 33 says electronic transmission is allowed then zip lip.

If challenged about a Non-profit being different then say show me where Title 33, Chapter 31 says no electronic transmission.

As I have said before. Your Bylaws could override this.

Chapter 15 is for Foreign Corporations...hardly our concern...or is it.....LOL

Hope this helps.

Robert's Rules of Order 11TH Edition, Page 401, Line 19:
As a compromise between the rights of the individual and the rights of the assembly, the principle that a two-thirds vote is required to adopt any motion that...
(d) closes nominations or the polls, or otherwise limits the freedom of nomination or voting

I agree wholeheartedly, BruceF1, and JohnC46 too.

Also,
I feel like my rights were usurped. along with all of the other owners.

Honestly, if the Board refuses to listen and/or verify that the procedures used were not in compliance with the governing documents and/or Federal/State laws, the only other options are:

1) Live with it (understanding the frustration factor may not allow this).

2) Recall the individual/entire Board

3) Not reelect the individual/entire Board (in this case, under the rules the Board is using)

4) Gather support and amend the governing documents.

5) Sell and move (not always a viable option, but an option none the less)

6) If available, make a complaint to the States ombudsman office (not available in all States and depending on State laws may have little or zero authority on the issue).

7) Talk to an attorney for options the courts can provide (sometimes a simple letter from an attorney can produce results without the need for litigation)

As you know the governing documents are considered a civil contract. Civil contracts only work when both sides agree and comply with the contract. If one side does not comply, either a new agreement needs to be worked out or a third party (mediator or courts) who has the authority needs to be involved to determine which side is or isn't in compliance.

I know that this isn't what you wanted to hear. However those honestly are your options. We can offer suggestions on how to gather support for your cause but for legal options you need to consult an attorney.

Thanks for the information. I'll keep this in mind if we ever run into a similar situation.

Regardless of having waived the privilege or not, I would expect that, in this case especially, the OP would likely require a court ruling to force disclosure.

In general, yes.

However, be sure to fully read the law as most corporate laws defer to the Bylaws or Articles of incorporation. Therefore, if the corporate statute defers to the governing documents and the governing documents are silent, this could be interpreted as you can't do something OR that it can be done because it wasn't prohibited.

In VA, courts are starting to take the opinion that if there is no applicable law and the governing documents are silent that it is an intent to exclude and, if challenged, would likely see the silence as prohibiting something from happening (because it didn't specifically authorize it).

Jean, where are you in the election rocess? Will there be annual meeting of the members to vote on directors? When is it scheduled?

Carol, the annual meeting was this past Saturday. As the pres stated, there is no election as there are only 4 people running for 4 spots on the BOD and it was just a consensus vote. He also stated it was a closed meeting, write-ins were not accepted, motion to nominate from the floor was rejected, he said he had an attorney look over our by-laws and that the attorney concluded write-ins were not allowed. When I questioned that the Pres was the election chair and according to our by-laws an ex-offico of all committees so he shouldn't be the election chair he said that traditionally either the Pres or VP was the election chair that's how it has been. So why then if this is how its always been writes-in were allowed until 2010 (but wasn't an issue as more people ran than spots available) but not now?

I feel like I am in a bad nightmare!

You are.

It doesn't appear to me your board is following accepted parliamentary procedure. Generally speaking, lawyers don't know diddly about parliamentary procedure (ask any parliamentarian), but they get listened to anyway because, well, because they're lawyers. Some people can't separate the two professions.

By the way, I once asked a lawyer a question on parliamentary procedure. His response: "Don't ask me, I'm a lawyer. Ask a parliamentarian."

As I have said before, they follow their own rules which they make up to suit themselves as they go along.

That's what children do.