Invalid Board Member Vote -- What to Do?

I attended my first board meeting as a new director last night. We voted for new officers and voted on a number of issues, the results of which could change based on who was allowed to vote. One of the Board members arrived with a proxy from another board member.

Our bylaws do not address the issue of board member proxies, and the legal team that the Board has used in the past his the following posted to their website:

When are Proxies Allowed?
Pursuant to the Colorado Common Interest Ownership Act (CCIOA), proxies are always allowed at membership meetings.  In other words, associations must allow owners to use proxies at membership meetings.

This rule, however, changes for board meetings.  Pursuant to the Colorado Revised Nonprofit Corp. Law (CRNCA), board members may only issue proxies if such authority is set forth in the bylaws.  If the bylaws are silent concerning board member proxies, board members cannot issue proxies for board meetings.  Even if the bylaws do allow directors to issue proxies for board meetings, CRNCA limits this authority by only allowing directed proxies to be issued and such issuance must be to another board member.  These limitations exist regardless of what the bylaws may provide.

http://www.hindmansanchez.com/resources/newsletter/proxies-nutshell/

So, in other words, the proxy votes from last night are invalid.

What is next? Does the vote from last night stand but we exclude the proxy vote? Do we need to reconvene another meeting? Do we have an email meeting clarifying how the absent member would have voted?

Ugh.

Thanks in advance.

Thanks Kerry. From what I've been *told* by former board members, they believe that the valid votes from last night's meeting stand. In one instance, the vote will change from a 3/2 victory to a 2/2 tie. With a tie, the motion does not pass. I don't think we need to hold another vote in that case. My nonlegal helpers seem to think that there are no "do overs" in this case.

I've never heard of a proxy vote used for board meetings. They can be used at a homeowner's meeting, such as voting for board members or establishing quorum (or both), but if a board member doesn't come to a meeting, he/she is marked as absent and that's the end of that. If you have a quorum based on everyone else who's there, you go ahead and vote on the agenda or officers - this person simply missed his/her opportunity to vote. That should have been made clear when this board member showed up with this "proxy."

In short, this proxy is just a piece of paper and means nothing. If that board member wanted to participate, he/she either shows up or participates via webcam or phone, provided your documents allow this. I wouldn't make any decisions via email - it's not appropriate most of the time unless there's an emergency, and even then, I would expect this to be addressed in your documents. Whatever votes you took should stand - remind everyone of the proper use of proxies at the next regularly scheduled meeting.

Incidentally, has your board ever allowed "proxy votes" before? If not, why allow this now - if that board member or anyone else wants this, then bring the subject to the homeowners and they can VOTE to change the bylaws accordingly.

While it is about CA, it does mention other states:

http://articles.latimes.com/2004/jan/18/realestate/re-associations18

What a helpful group of people! There was only one motion affected by the revised vote count. Everything is good and the other board members are OK with the changed votes.

Be sure whatever you do is clearly stated in the minutes, since minutes are the legal record of the association.

At the next meeting, I would have the first vote declared invalid and vote again. Since there was a tie on the issue, someone may be persuaded to change their vote.

Better safe than sorry, especially if this was a vote to spend money.