Proxies

I take it the limitation on the proxies are in your governing documents as there is no applicable State law that limits who may be a proxy representative.

Considering that owners are allowed to vote in person or by proxy, I also suspect that anyone who really wanted to challenge the limit on the number of members they may represent by proxy might have a good chance of winning. I say this because your limitation may infringe on my right as a member to assign the proxy representative I desire. If I were in your Association, I would suggest that that questions (if the limitations infringe on the rights of members, as outlined in VA § 13.1-847, to chose whom they wish and, if it does, can the rule withstand a legal challenge).

That said.

To directly respond to your question, I point you toward VA's Nonstock Corporation Act, specifically § 13.1-847.1, which says:

D. In determining the validity of proxies and ballots and in counting the votes, the inspectors shall be limited to an examination of the proxies, any envelopes submitted with those proxies, any information provided in accordance with subsection B of § 13.1-847, ballots, and the regular books and records of the corporation.

Or to put another way -

An Association can't reject a proxy because of the method used to have it delivered to the Association.

Larry - What's with the comment about creating problems for ourselves? We didn't write the docs.

Our docs specify that an owner can only hold 5 directed proxies and cast votes for 5 proxies. We have an owner that is collecting about 30 proxies (in addition to the 5 that are assigned to her) and the other 25 directed proxies are checked and assigned to the secretary who can collect unlimited directed proxies. Not sure if she is going to mail them in as if she is the owner, or if she is going to walk in with the 30 proxies and hand them over to the secretary. Our attorney has been useless in addressing this for us and he says that this must be policed or controlled by the owner that is giving their proxy (marked for secretary) to this owner who has collected the 30 proxies... and controlled or addressed by the HOA.

No doubt, next year, we will go with online voting. It's easier, more secure and there is less exposure to fraud.

MikeS, This is not specifically for you – as I am not quoting Virginia law – but rather as a comment re the limit of five (5) DIRECTED Proxies specified in your Documents.

The latest UCIOA (which is used as a template for the State Statute in a number of states, including my state Vermont), has this to say re Proxies:

SECTION 3-110. VOTING; PROXIES; BALLOTS.
(a) Unless prohibited or limited by the declaration or bylaws, unit owners may vote at a meeting in person, by absentee ballot pursuant to subsection (b)(4), by a proxy pursuant to subsection (c) or, when a vote is conducted without a meeting, by electronic or paper ballot pursuant to subsection (d).

(6) A person may not cast undirected proxies representing more than [15] percent of the votes in the association.

And the UCIOA COMMENT following:

4. Proxy voting has been the subject of some controversy in the states, primarily as a consequence of some unit owners seeking to collect very large numbers of undirected proxies to be cast at meetings where contested matters are to be voted on. While the declaration and bylaws may impose further restrictions on proxy voting, the 2008 amendments impose only two: subsection (c)(5) limits the validity of proxy only to the meeting at which it is cast; and (c)(6) limits the proxies that any one person may cast to a percent set by statute.
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MikeS, because your Documents apparently has an unusual clause, requirement, restriction, relating to Directed Proxies rather than for Undirected Proxies, would you be willing to post that(those) clause(s)?

Thank you.

Nope. We are on the same page. That member discovered a loophole.
Whomever thought of the wording for your limitation didn't think about that possibility and the loophole was created.

Loopholes, although frustrating, are legal.


BTW - from another perspective, the limitation could be viewed as a method to keep control in the hands of the Board. That is to say - why, simply because you are on the Board, should you be able to control more proxies than those who don't serve on the board?

Just an observation and one of the reasons why I don't think your limitation would withstand a legal challenge. However, I could be wrong.


How is that different than that person walking in with the 5 proxies assigned to her and the other members mailing the proxies in to the Board?

OR

How is that different than that person walking in with the 5 proxies assigned to her and having members hand you the proxies that are assigned to the Board?

I don't see the difference. Be it the USPS, You or Her delivering the proxies to the Board, all are simply acting as the deliverer of the proxies. They do not control them.

NOW - if you are indicating fraud and that the individual tampered with the proxies (and the same argument could be raised if you were the one delivering them) that would be a different issue. However, that is not the issue you are raising. You are simply raising the issue that that individual should not be the delivery person for the proxy form.


Because VA statutes, specifically VA § 13.1-847.1, specifies that [emphasis added]:

D. In determining the validity of proxies and ballots and in counting the votes, the inspectors shall be limited to an examination of the proxies, any envelopes submitted with those proxies, any information provided in accordance with subsection B of § 13.1-847, ballots, and the regular books and records of the corporation. If the inspectors consider other reliable information for the limited purpose permitted herein, they shall specify, at the time that they make their certification pursuant to clause (v) of subsection B, the precise information that they considered, including the person or persons from whom they obtained the information, when the information was obtained, the means by which the information was obtained, and the basis for their belief that such information is accurate and reliable.


I expect that you allow proxies to be mailed into the Board.
In those cases, the Secretary really did not receive the proxy from the owner either. They received it from the USPS. They have zero idea on who mailed it.

Perhaps you allow proxies to be dropped off at a managers office. Would the manager refuse the proxy if the member asked a neighbor (or you) to drop the proxy off for them? I don't think they would.


No, the candidate is simply acting as the delivery person.
Just as you would be acting as the delivery person if someone handed you a proxy to turn into the Secretary.
Just as the USPS would be acting as the delivery person.
Just as a fax machine or e-mail would be acting as a delivery medium.


Tough Love time:

Yes, it does clarify it for me. You and/or other members of the Board are afraid that this person may be elected to serve on the Board. Therefore, as we have read on here many many times, you and/or other members of the Board are trying to find someway to stop that from happening.

Face it, this person apparently went out and knocked on more doors than other candidates and convinced the member to provide exercise their right to vote by using a proxy.

Let me ask you this simple question:

If you had gone door to door campaigning, what would you do for the sixth person who said that they would give you their proxy? Would you tell them that you have received your limited number so they need to name the Board as the proxy representative and hope that they actually mail it in? OR would you offer to deliver it for them?

From our communications with each other, I believe that you would offer to deliver it for them. This, from my perspective, is all the candidate did. If you had collected that proxy and it would have been accepted without question from the rest of the Board, then you had already set precedence for having proxies delivered.

As both of us have told others, if you don't like the rules as written, propose an amendment to have them changed.

For anyone interested, in my earlier posting, sub-section (6) should have read: “A person may not cast undirected proxies representing more than 15 percent of the votes in the association.”

Also, because as written, the 15 was enclosed by square brackets, the UCIOA leaves it up to the individual State to decide the actual percentage that they wish to specify.

And for MikeS,

approximately how large is your Association, and what is the Quorum requirement for an Association meeting?

I ask because I know of a requirement that reads: No one person may serve as proxy for more than five (5) absent members. But for that particular Association, the Quorum requirement is "10 members constitute a quorum". And while it does not specifically state either directed or undirected, I would interpret the requirement to mean undirected proxies.

Ellie - I'll have to get back to you on your questions. ..have to look them up.

Thanks Tim - and congrats on your new family member!