Board Secretary has given Board President her proxy for voting on HOA issues while away

At one time, our HOA had 3 Board members who gave President their proxies for voting. These proxies for a 7 member board gave the President power for two years as they represented the Majority. We now have a 5 member board with majority consisting of (same) President, board member and proxy for President to use as she sees fit. I now read that Arizona law says no proxies allowed - only absentee votes. My question is...can the President send an absentee form to proxy holder to be filled out & returned, giving President Power of Attorney for voting.

I'm with Carol. A proxy for a meeting of the board of directors seems highly unusual.

Judith,

I am not an attorney and I do not work in the legal profession.

Expecting that your Association is incorporated as a nonprofit (most are, but check to be sure), then the Arizona Nonprofit Corporation Act, Title 10, Chapters 24-40, would apply.

Per AZ 10-3824, a Director may vote by proxy providing the Articles of Incorporation or Bylaws allow it. Therefore, the answer to your question will be within your governing documents.

If your governing documents are silent, then Directors may not vote by proxy.

Keep in mind that we are only discussing Directors voting at Board meetings. AZ statutes do not allow members to vote by proxy at annual meetings.

Hope this helps,

Tim

Thank all of you for responding to my question. The following is from our By-Laws written in 1973:

Article II
Meetings & Elections

SPECIAL MEETINGS:
Special meetings may be called at any time by a majority of the Board or written request of 20% of the membership.

PROXIES:
At all elections and special meetings, etc.

I believe the President, along with the board members, were under the impression that homeowners need not be present in order for her to use proxies, in other words, a non-open special meeting. Several issues were voted on and passed by majority of board during that time.

Since March 2013, with new members on the board, all meetings are open meetings, however she plans to use proxy at next open meeting.

Any further advice will be greatly appreciated.

Your documents don't actually say "etc..." do they?
Elections are not board meetings
Special meetings are not board meetings
Both are meetings of the general membership.

And what on Earth is a non-open special meeting??

Right Carol. There can be a special meeting of the board of directors. It's clear that the referenced text is NOT talking about that type of special meeting since it makes reference to a special meeting being called by 20% of the membership. It's not like 20% of the membership is going to get together and say "Y'all need to get together and have a board meeting without us".

DaveD wrote: "There can be a special meeting of the board of directors. It's clear that the referenced text is NOT talking about that type of special meeting since it makes reference to a special meeting being called by 20% of the membership."

I see it the way that you do, Dave. But I'm not sure that Judith makes that important distinction. I also think that there may be more about "special meetings" in her bylaws than what she cited. If not, the AZ corporations codes should help.

Please Note that under AZ law, proxies for Directors to be used at Board of Director meetings are authorized if your governing documents allow Directors to use proxies.

Under AZ law, 33-1812 and 33-1250, proxies are not allowed to be used in general membership meetings (regardless if the governing documents allow them or not) unless the Association is under Declarant (developer) control.

Dave,

Precise wording of Proxies from our by-laws:
At all elections and special meetings, on issues requiring a ballot vote, each member may vote in person or by proxy. All proxies shall be in writing with lot number, and shall be dated, signed, and executed, witnessed within thirty five (35) days of the date of the election or special meeting on issues requiring a ballot vote. The entire life of any proxy shall be thirty five (35) days and shall expire twenty four (24) hours after said election or special meeting requiring a ballot vote. Every proxy shall be revocable and shall automatically cease upon conveyance by the member of his/her lot by sale or transfer.

I referred to “non-open” special meeting, as this was actually what was held. Only Board members were present. We met to vote on several issues. The President had been given 3 proxies, which she used on all issues to be voted on. We were all fairly new to the board, including President, and unfortunately were not well informed with the CC&R’s. We took President’s interpretation of a special meeting at face value. The by-law wording should have read for layman purposes “Special meetings (OF THE MEMBERSHIP) may be called at any time by a majority of the Board or written request of 20% of the membership.” I believe this infraction would not have occurred.

In the words of the robot on lost in space: DANGER WILL ROBINSON DANGER

This wording is in conflict with current Arizona laws (see links provided in my posting just prior to this one). When a conflict exists, the higher precedent document (in this case, AZ law) is the one that must be complied with.

I suspect that it is left over wording from when the Declarant was in control (as proxies are allowed when a Declarant is in control). That section should have been removed. At the very least your Board and members should be aware that the wording is in conflict with applicable AZ laws.

If your Association is allowing members to vote by proxy, they run the risk of losing any legal challenge to any vote where proxies were used. This is not too much of an issue for elections but it can toss out any amendments to governing documents where the amendment was only adopted because of the use of proxies.

Judith,
A modification of the documents is entirely unnecessary because they are unenforceable as written, being in conflict with the current law.

While consulting with the HOA attorney would be a good idea, I would think that the board has the ability to approach it in two ways:
1) Make an announcement to the general membership stating the conflict and stating that proxies will no longer be permitted
2) Make a change to the documents without a vote of the membership to strike the illegal reference to proxies. (I'd consult the attorney to go this route)

Regardless of the law, I don't see the quoted statement about proxies as having any teeth in a board meeting. Board meeting votes are NOT generally held by ballot, which is explicitly referenced in that text

Arizona, err Judith,

You would need to follow the methodology outlined in your governing documents to amend them.

As I read the law (and again, I am not an attorney) voting by mail is allowed.

Tim (Virginia is the State I'm from)

Many docs do give the BOD the right to amend/modify the docs to be in accordance with the law.