Election, Proxies, Ballots (HOA in Virginia)

Our process may or may not be correct. I would appreciate any expertise that can be offered.

We send out a proxy before the annual meeting. The proxy has the candidates listed and spaces for write-ins, and instructions on how many names to vote for ("no more than x").

The language on the proxy says "The undersigned member hereby appoints [names of BOD members], each of them jointly and severally, proxies with full power of substitution, to vote my vote, which I am entitled to cast as a member of the Association, on the election of two members of the Board of Directors and any other matter which may come before the Association at the Annual Meeting."

Members can mail in the proxy if they don't plan to attend the annual meeting. They can send it in to help fill a quorum (no vote needed) or they can indicate their vote on the proxy.

Members who attend bring the proxy with them and hand them to the secretary.

Our bylaws specify secret ballots. This hasn't been done in quite some time. Our property manager says the members decided they wanted to vote at the meeting by acclamation.

We also allow self-nominations from the floor at the meeting.

I'm the new secretary and I'm having trouble understanding how to conduct this.

What I believe has happened in the past is the proxies were considered ballots, and both absentee ones and ones from attendees were simply counted.

However, if we want to do secret ballots as specified in the bylaws, how would that work? Count the proxies by the nonattendees as we would ballots and issue ballots to attendees for each proxy that they bring, which would be collected after the nominating process?

Or should we just do it the way we have for the past 5-6 years or more?

You are using what is called a directed proxy form.
Directed proxies are as close as you can get to voting by mail without actually sending ballots.

Both general and directed proxies can be used.


Ours specify that if no name is filled in, then the Board will act as the proxy.

Per law, members may appoint anyone they desire to serve as their proxy representative. They do not have to be assigning proxies to the Board. Proxies also do not have to be on a designated form. They only need to contain enough information so the Board can have good faith verification that the proxy is legit.

See the Virginia Nonstock Corporation Act (which typically applies to Associations in VA) for more information. Specifically VA § 13.1-847 as it addresses proxies.

I'm running out of time and will comment on the rest of this post tonight.
Hopefully, in the time I've had, I've provided some links that may help you.

Tim

I support your approach, Donna!

Donna,

I've done some more research and this what I've determined (and you should know that I am not an attorney nor do I work in the legal profession): Your Association must elect Directors as outlined in your governing documents.

Vote by acclamation is simply voting for something by a method other than ballots. Roberts Rules of Order allow this if there is no opposition. No opposition is typically seen as having no more candidates than there are vacancies.

However, per your posting, your Bylaws are very clear that the vote is to be done by secret ballot. If your Association is incorporated as a nonprofit (most are) then the applicable law, VA § 13.1-855 specifies "Directors shall be elected or appointed in the manner provided in the articles of incorporation".

Although not a legal document, the Fairfax County Community Association Manual, specifically the section on voting procedures helps to clarify by stating that Association bylaws often specify that the election of board members must use written ballots but allow discretion as to the method of voting when deciding other issues.

Since your governing documents specify the manner of electing Directors be done by secret ballot, then the Association must use a secret ballot and any other method could be challenged in court.

Additionally, since your Associations accepts nominations from the floor (ours does as well), this requires that the Ballot has spaces for write-in candidates. Therefore, voting by acclamation would eliminate a members option of voting for a write-in of their choosing (remember that proxies are not ballots and can not be counted as ballots so any write-in's on the proxy wouldn't be counted). Therefore, voting by acclamation would put the Association at risk to have the election results challenged.

Therefore, in my layman's opinion, Your Association must elect Directors as outlined in your governing documents (i.e. by secret ballot).

Now the reality of it is, it is likely that if the Board took a voice vote at the general meeting to vote by acclamation vs. by secret ballot and the members in attendance agreed, that there would be no challenges to the election. However, this would not be in compliance with your governing documents and does technically put the Association at risk losing any challenge to that election.

Worst case scenario (doesn't everyone love these), I could potentially see that not only the elections could be challenged but that decisions of a Board who failed to follow the procedures outlined in the governing documents to be elected, could be overturned by a court if challenged.

Again, the reality is likely that nobody would challenge. Why take that chance when it only requires a few more minutes and the cost of printed ballots to minimize or eliminate any such challenges?

Oh, there was one other thing. The people attending bring proxies with them, which in the past have been treated as ballots. Logically, I guess what we would do is take the proxy, hand them a ballot, and tell them not to mark it until after the polls close, so that they are not voting before the period in which nominations from the floor are taken. Correct?

Forgot to add that using directed proxies does eliminate the secrecy of how they voted, but that was the members choice when they used a directed proxy over a general proxy. The ballots themselves don't indicate who voted for who. It's only when someone looks at the proxies that this can be identified.

Yes.

That is how we handle any proxies received for the general membership meeting.
It doesn't matter if the proxy representative is the Board or an individual. We process them the same way.

If you didn't use directed proxies (i.e. only using general proxies), the issue on how to handle them would be less.

For clarification if anyone is unaware:

A General Proxy is where a member identifies an individual (or the Board) to represent the member at the general meeting and cast ballot on the members behalf. The Representative (aka Proxy) is free to cast the vote how they wish and/or thinks is best.

A Directed proxy is where a member identifies an individual (or the Board) to represent the member at the general meeting and cast ballot on the members behalf. However the Representative (aka Proxy) is instructed to make the ballot a specific way (yea for this, nay for that, etc.).

Donna,

There is no law or guideline on this. The procedure you use will need to be established by your Board of Directors.

I've already told you how are Association does it. You are free to use this procedure, modify it so it fits your Association or not use it at all.

Again the procedure is:

1) Individual who has a proxy form shows up at the meeting and checks in at the sign-in desk (I expect that this is whom you are referring to as attendees).

2) Election Official/Secretary verifies proxy is complete.

3) Individual/Attendee signs in for the member (we have a check box on the sign-in sheet to indicate that this is a proxy)

4) If the proxy form is a Directed proxy (which is what your description of the form you are using sounds like), the election official marks the ballot as specified on the proxy form.

5) The election official retains the proxy form for Association records and hands the completed ballot to the individual/attendee to hand in when the polls open.

OPTIONAL - Our proxy form gives the option to allow the attendee to vote as they desire (also known as a general proxy). When this happens, the procedure we use is:

Step 1, 2 and 3 are the same.

4) The election official retains the proxy form for Association records and hands a blank ballot to the individual/attendee.

OPTIONAL - Since our form gives the option of specifying how an individual to vote or allows the individual to vote as they think is best, it is possible to get a mixed proxy (vote yea for candidate a and b but allow the attendee to decide the rest of the ballot). When this happens, this is our procedure:

Step 1, 2, 3 and 4 are the same.

5) The election official retains the proxy form for Association records and hands the partially marked ballot to the individual/attendee to complete as they desire and hand in when the polls open.

I've also attached a copy of our proxy form, as it may help to look at it when you read the procedures.

I hope all of this helps,

Tim

We sent a completed/signed proxy form to our secretary. Then we decided to attend the meeting. When we signed in, we were give a ballot and our proxy was shredded. So everyone at the meeting casts a ballot. This procedure was recommended by our lawyer.

Elections cant be done with return mail ballots AND write-ins, AND take nominations from the floor. They don't mix.

Close nominations on a certain date and print your ballot as a mail- in. . Members can mail them back in OR sign a proxy form for either a certain person to act as their proxy or the HOA secretary can cast the votes. Votes are tabulated at the annual meeting.

Yes, that was me. We now use ballots at the meeting and if someone comes to the Annual Meeting who already sent a proxy, the proxy is eliminated and the person casts a ballot. Thanks!

This forum is so helpful.

I would imagine that's the case for almost all HOAs. You have to accept nominations at the meeting. The system could be abused if you don't.