Proxy use for voting for BOD

Hello,

I have a few questions:

Under voting in our bylaws it says nothing about proxy usage and the Non Profit Michigan Compiled Law say you can only use proxies
if it allowed in the Bylaws or Articles of Incorporation ( which in the AOI it is not, I have a copy).

Our bylaws states:

Section 6: Voting of Members. Subject to the provisions of Section 10 of this Article II, each outstanding member of the Association shall be entitled to one vote upon each matter submitted to a vote at meeting of members except as the Articles of Incorporation otherwise provide.

Let me also add there is NO SECTION 10 of Article II in the bylaws

Then it states under Quorum:
Section 5: Quorum. Twenty (20) members of the Association entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of the members.

So, because you can use a proxy for a quorum does this hold true for voting since under voting it does not say you can use a proxy?

It also says in the Non Profit Corporation Act Act 162 of 1982
450.3144
Proxies; voting by mail ballot, referendum, or electronic transmission.
Sec. 1144.
(1) Notwithstanding section 421, there shall be no proxies unless the articles of incorporation or bylaws authorize use of proxies. If the articles of incorporation or bylaws authorize use of proxies, an individual may not vote more than 5 proxies at any meeting.

More than 5 proxies per person were brought in at the annual HOA meeting and we allowed to be used for voting, isn't that ILLEGAL. What can do I do about this?

Thank you so much

1. Proxies Allowed?

If I understand you correctly, Section 5 on Quorum allows for Proxies. Section 6 on Voting points to Bylaws A2 Section 10 which doesn't exist - So there are no specific Proxy rules on Voting.

"So, because you can use a proxy for a quorum does this hold true for voting since under voting it does not say you can use a proxy?"

You have put the question very well. There is no clear-cut answer. You can probably find a lawyer who will interpret it either way. I wouldn't want my money spent to watch 2 lawyers battle it out. Best suggestion I can make is try to get your membership motivated to change your docs.

2. More than 5 Proxies?

If there would have been no difference in the outcome with only 5 proxies being counted, then you shouldn't try to do anything about the past election. If you want to do something about it, make sure it doesn't happen at the next election.

You are in a difficult position that is complicated by all these family relationships. I hope you are not trying to reverse the old election and get your Husband made president. If you try to get this done through the courts, it could take 2 years. Better to plan for the next election cycle.

The PMC is not at fault. The PMC is either doing its job or not. If it isn't doing its job, it should be fired.

The Board is at fault for allowing this to happen. Forget about the PMC. Change the composition of the board.

Kim

I am not nor do I play a lawyer.

You say your state laws say proxies are not allowed unless your docs say they are. I say as your docs do allow proxies for quorum and your docs do not say they can not be used for voting also, then they are allowed for both quorum and voting.

The actual proxy could say for quorum purposes only and cannot be used for voting. It is like voting Present versus voting Yes or No.

While I personally do not agree with limiting the amount of proxies one person can hold, it is a common practice to do so. I would also say if state law specifically say one cannot limit the amount of proxies one holds, then your limit of 5 is illegal.

Any other member of the Association can do the same thing.

In fact, if a member had the desire, they could knock on doors after that individual knocks on doors, have a proxy that cancels the earlier proxy.


No. The above is simply politics.
Again, any member may do the same (including those who want to keep the person off the Board).


As far as being reimbursed, since you reviewed the laws, you know that being reimbursed for expenses is legal. The PM is simply processing the paperwork. The question should be why aren't the other Board members stopping this practice? They are the ones who have the authority.

I agree that there should be a time frame and an established limit. Perhaps even, proof of the trips made (like a receipt for having something printed at the store, etc.).

Therefore, I would encourage you to have such a policy adopted by the Association. Perhaps even use that as a campaign slogan to encourage the membership to vote for you.

Please be aware that, per federal laws, one may not place anything in mailboxes that hasn't been processed through the USPS.

The Association did not have the authority to grant this permission.

See http://www.gao.gov/archive/1997/gg97085.pdf

Your postal carrier appears to be a nice person.

Had someone else complained and the issue was investigated, the postal carrier would have likely been reprimanded for giving the authorization. Be sure to remember her at this time of year.

Kim

Seems some 80 year old man beat your hubby fair and square in an election.

Kim,

That chapter, as I understand it, is only applicable to cooperatives.

Even though your Association is incorporated as a non-profit, I do not see how it would need to comply with that chapter. see: 162-1982-11 CHAPTER 11 (450.3100...450.3192)
Section 450.3101 Applicability of act and chapter

If I am correct, the 5 proxy limit would not apply.

If I am incorrect and the proxy limit does apply, there is also the issue that the individual was serving on the Board. Therefore, if the proxy was assigned to the Board, vs. the individual, I do not think the limit would apply to the Board.

This would be a question for a local attorney.

Kim

If you want to beat this "old man" then stop with the extraneous information and unproven/not important accusations. Zero in on the one or two things that most people dislike about him. Quantify those items versus keep throwing mud against the wall and hope some sticks.

...the bottom line...

you and the pres have both 'signed' a covenant

you believe he is in violation

take whatever legal action you believe is necessary

but

quit 'yer whining and bit****g

it is getting quite 'old'

.

.

.

there, I have said what many others are thinking but are too polite to say out loud

OK, Kim lets say you are correct and the president may not use proxies, in fact lets say he is violating the law completely. Now what? There are no proxy police, no one from the state or federal government is going to swoop in to save the day because it is a civil matter and the only way IMHO to stop it would be to take him to court and get an injunction to prevent it, which lets face it would be costly, time consuming and you are not guaranteed to win.

Kim

If I was your prez, I would have proxies made in the name of 7 friends and in my own name.

8 people x 5 proxies = 40 ballots. Plus our own votes (8 more) = a grand total of 48 votes.

If I remember correctly, 48 votes is more than half your community.

No more than 5 proxies per person. Poof - Prez wins - You lose.

All Prez needs is 7 friends who will go along with him. Then where are you?

At this point I dont even care about the proxies, when you do the math he lost. We want him out of office.
THe next step is to help a special meeting and have the membership vote him out.

We have another board in place already ( NOT ME FYI ).

Justice will be served.

If that was the case then yes he could of but he did not. I did already realize that. If he did that then it would be legal,
then it would be the end of the story but he did not do that.

The entire situation is that, WE CANT USE PROXIES according to our bylaws it does not allow them, but the MGMT. company
who held the election allowed them, even if it was allowed only 5 per person would be allowed according to the Michigan Law.

Doesn't even matter now and is not worth the fight, the solution is to get him removed from office.

Actually,

I'm not sure that the 5 proxy limit would apply to the Board. That would be a good question for an attorney for those Associations that have limits on proxies.

Expecting that there is no limit for the Board, if the proxy was made out to the Board (or an officer of the Board), there could be a loophole.

Good questions, we will cross that bridge before we come to it.
We are just now trying to figure out HOW TO GET A SPECIAL MEETING....

Question also being..... he has stated to be a member of good standing you cant owe money for dues,
well he has not paid them in 14 years.... also if your not a member of good standing you are not allowed
to vote. So is he allowed a vote? Who knows, he voted for himself and voted for 30 others using proxies
didnt he. Rules apply to everyone but him .

We need to get this proxy situation taken care of before I can answer these questions you asked

I am not here to argue, I am exhausted answering these questions. I feel I have thourally explained myself
and the situation our subdivsion has.

I need to put my time into solutions. ALL SOLUTIONS ARE WELCOME. I am looking for answers. Why dont you
answer the questions you asked me? What would you do? How would you go about it?

Thanks

Maybe he didn't do it last time, but what if he does it next time.



You have not explained how you intend to keep the PMC from doing it to you again.



You're going to win but you don't have to prepare for what he might do. And when you don't like the details, you say they don't matter. Sorry but this sounds like nonsense to me.

We are here to toughen you up and help you get prepared. I believe that you should be investing your time in preparing for the special meeting instead of talking about how many stamps are on an envelope.


That sure is an interesting argument, but what if Prez says that's the way it's done and you should have raised the issue before the meeting. And then the PM will chime in that you are out of order.

Tim makes a very good recommendation that things like this should be resolved before the meeting.

Also, even if Prez isn't a member in good standing, he can still vote proxies without being a member in good standing.


Yes you do need to get the proxy situation taken care of. And it may cost $$$ to get a legal opinion. But I think that's where you might be headed.

We are not here to argue either, but we are here to toughen you up for the fight ahead.

You explained what he did wrong to the point that we don't want to hear it again. What you haven't done is give us the details about what will happen in preparation for and during the meeting where you intend to vote Prez out.


If I were you, the first thing I would do is stop talking about receipts and postage stamps. I would get someone else's opinion on how the statute should be interpreted. I would not rely on my own reading. As Tim has pointed out, there are different interpretations possible. And instead of saying no, I know how to read the statute better than you - I would listen.

One thing I would definitely try to do is to bring in someone else to run the meeting. I would start working on what rules apply at the meeting. You say Roberts got rejected at the last meeting. Well, if the same people run your next meeting, Roberts will be rejected again.

I don't envy you. If you can gather enough support, you can get rid of Prez. But I have the feeling that he's no pushover.

We are here to toughen you up and help you get prepared. I believe that you should be investing your time in preparing for the special meeting instead of talking about how many stamps are on an envelope.

(LOL, I know but those stamps per year of his cost us about $250 plus each year)

That sure is an interesting argument, but what if Prez says that's the way it's done and you should have raised the issue before the meeting.( GOOD QUESTION) And then the PM will chime in that you are out of order.
( THE PM DOES NOT RUN THE MEETING, OUR PRESIDENT DOES... yep thats right, he does lol )

Tim makes a very good recommendation that things like this should be resolved before the meeting. ( AGREED)

Also, even if Prez isn't a member in good standing, he can still vote proxies without being a member in good standing ( how can he still vote for others if he is not allowed to vote himself?)

Yes you do need to get the proxy situation taken care of. And it may cost $$$ to get a legal opinion. But I think that's where you might be headed.

We are not here to argue either, but we are here to toughen you up for the fight ahead. ( note taken)

You explained what he did wrong to the point that we don't want to hear it again. What you haven't done is give us the details about what will happen in preparation for and during the meeting where you intend to vote Prez out. ( AGREED, I am now to a forum and I was just reexplaining to each person asking a question that is why you read it over and over)

If I were you, the first thing I would do is stop talking about receipts and postage stamps. I would get someone else's opinion on how the statute should be interpreted. I would not rely on my own reading. As Tim has pointed out, there are different interpretations possible. And instead of saying no, I know how to read the statute better than you - I would listen. ( I am trying, I am not using my own interpertation, I am also listening to a person who has done this for 45 years and been on a board to rewrite bylaws with Ford Motor Company and a UAW ReP, I would never say I know better than you, I just know what I have been told and how it reads)

One thing I would definitely try to do is to bring in someone else to run the meeting. I would start working on what rules apply at the meeting. You say Roberts got rejected at the last meeting. Well, if the same people run your next meeting, Roberts will be rejected again.

(This is where we are at now: How do we get a special meeting? Who runs this meeting the members of the officers? etc etc etc we have no idea.... need help please

I don't envy you. If you can gather enough support, you can get rid of Prez. But I have the feeling that he's no pushover.

Our bylaws states:

Section 5: Quorum. Twenty (20) members of the Association entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of the members.

If proxies were not allowed, then that language would not be used.

( Proxies are allowed for a quorum because we can hardly get 20 ppl to the meetings )

under the voting section of the bylaws it does not say you can vote by proxy and it has to according to
the Michigan Law.. that is what I am saying...

450.3144
Proxies; voting by mail ballot, referendum, or electronic transmission.
Sec. 1144.
(1) Notwithstanding section 421, there shall be no proxies unless the articles of incorporation or bylaws authorize use of proxies. If the articles of incorporation or bylaws authorize use of proxies, an individual may not vote more than 5 proxies at any meeting.

Well, then that would be the basis for challenging the election.
The challenge, in my opinion, should be made prior to the ballots being cast and a copy of the statute available for everyone to look at.

In reality, this challenge should be made now so it isn't an issue at the meeting.

I have notified the PMC and the entire BOD about this, NO ANSWER! With that being said,
that tells me they will do what they want.

The person who gave the proxy has to be a member in good standing. The proxy-holder can be anyone - doesn't even have to be a member of the HOA.

Because he's wearing 2 different hats.

When he's voting for himself (wearing his homeowner hat), he is the designated voting homeowner - he must be a member in good standing.

When he's voting for someone else (wearing his proxy holder hat), he is not the designated voting homeowner - and he does not have to be a member in good standing. Look at what the form requires - A name and an address. Nothing about the proxy holder having to be a member in good standing.

Very hard to explain this one let me try to be brief ...

I understand that it says nothing about the proxy holder having to be in good standing on the actual proxy but,
in our newsletter from the BOD it was about " what is a member of good standing" and if your not your cant vote, they said this WILL BE ADDENDUM to our BI-LAWS. The board voted unanimously on the motion.

Now, correct me if I am wrong... The board cannot change or add to our bylaws without a vote from the
membership. This was even agreed on when I brought this to the attention of the PMC, YET our President it doing it! WTH

Send a copy of the exact wording in the addendum.