President changed the votes using proxy

Hi All,

I need advice on the topic below:

Our community is 8 years old.
There are 3 positions in our HOA, each valid for 3 years once elected.
Current president is holding the position since the begining.
3rd seat was empty for past few years and nobody was interested in joining the board.
I became resident last year and joined the board few months ago(without election) and filled the 3rd seat.

Last Tuesday, election were held for 2 seats.
Current president and my name was on the ballot when election/annual meeting was announced month ago.

30 residents sent their proxy and but they also filled their ballot and checked who they wanted to vote.
In some cases, they striked President's name and my name was selected.
On the proxy letter, they did not put any name so the proxy power went to president by default.

On the election day, in annual meeting, I was surprise to see 3rd candidate(President's neighbour) name on ballot.
Annual meeting attended by 17 families and 3 board members. (and 30 proxies.)
Each household could choose maximum 2 out of 3 candidates.

In the meeting winners were anncouced and vote count was not given.
President and President's neighbour were the winners.

Later when peoples found out the result, 8 of them reached out to me saying they all sent their proxy with my name on the ballot.
So I asked for more information from HOA management found the following:

President got 50 Votes,
I got 4
3rd Candidate got 49.

I feel election was not fair beacuse:

1. The vote count is not mathematically possible.
2. President changed original votes casted on ballot (sent with proxy) and put her and her neighbour's name using proxy power.
3. Nobody knew there was 3rd Candidate till we enter the meeting hall.

Please let me know if I can challenge this election?

I would start with your documents. Our documents outline how votes are to be conducted. Who counted your votes? Obviously something is not right if 9 people voted for you (assuming you voted for yourself) and you only got 4 votes.

HOA person collected and counted the votes.
BTW, I also voted for President (and myself)

I asked for clarification from management company and got new vote count and explanation below.

-----------------------------------------------------------------------------------------------
The ballots are only counted at the meeting since the documents for this community allow for
nominations on the floor – at the meeting. If people voted prior to the meeting, they would
not have all of the information with regards to who was running for the Board.

If a home owner cannot attend the meeting, they complete the proxy and that proxy designates
who can vote for them at that meeting. Any proxy that left the designation blank, is
automatically assigned to the Board president; which it states in the language of the proxy.
-----------------------------------------------------------------------------------------------

Does "directed proxy" applicable based on above?

Thank you.

I sent request to the HOA management company to see all ballots(valid and invalid)as wells as proxy document. I assume that is valid request.

Is it possible for the OP can post the proxy sections of the CC&R's and Bylaws?

I have seen undesignated proxies go toward a quorum count but never to the board president, OP please post the documents sections.

Overall, I think the OP got screwed out of at least some of the votes.

From BYLAWS

Proxies.

All Members of the Association may vote and transact business at any meeting of the Association by
proxy which is authorized in writing and meets the applicable requirements of the Governing
Documents and Legal Requirements. A proxy is void if it is not dated. A proxy terminates
eleven (11) months after its date, unless it specifics a shorter term. A Member may not revoke a
proxy given pursuant to this Section except by actual notice of revocation to the Person presiding
over a meeting of the Association. Proxies may not be used in connection with meetings of the Board,
Architectural Review Committee Or any other Board committee.

My understanding WAS, if you have proxy power, then you can change the vote

So the residents sent (1) the proxy below and (2) a ballot with your name on it?

And your name was scratched off the ballot when the vote took place?

I don't think that "full power of substitution" means that the person who receives the proxy can go against instructions from the person who gave the proxy.

(1) Proxy

2019 ANNUAL MEETING
PROXY
PLEASE PRINT
I/we ____________________________________________________, being owners of the
property located at ________________________________________________, ,
and member(s) of XYZ Community Association, Inc. do hereby authorize and appoint the
President of the Board of Directors or____________________________(insert name of
homeowner who will vote on your behalf) who is a member of XYZ Community Association Inc,
to be my/our proxy, with full power of substitution to act and vote for and on behalf of
me/us at the XYZ Community Association Inc. Annual Meeting to be held .
This proxy shall remain in full force and effect until such time as it shall be revoked
by me/us in writing, until I/We transfer title to my/our property in, or by my/our attendance
at the meeting.

Owner Signature: ___________________________________________ Date: __________

Owner signature: ___________________________________________ Date: __________

If unable to attend this meeting, please complete and return this proxy to

(2) Ballot (a separate document)

Agree with this statement. "Full power of substitution" does not indicate that the desired/directed vote can be changed. In my experience, "full power of substitution" means that whoever is designated as the proxy can further delegate that proxy to someone else . . . a different individual, but someone still voting as desired/directed by the person giving the proxy.

Further . . . on the mathematical possibility of the votes. You are correct that the total isn't possible (if your count of families, board members, and proxies is accurate). Your math indicates a max of 50 ballots, with a total maximum possibility of 100 votes being cast. HOA Mgm't apparently accounts for 103 votes (an impossibility).

Definitely several reasons to challenge the election results.

OP indicated:

- "Annual meeting attended by 17 families and 3 board members. (and 30 proxies.)" . . . 17 + 3 + 30 = 50 (assuming all represent different households) . . . maximum of 50 ballots.

- "Each household could choose maximum 2 out of 3 candidates." . . . key words are maximum 2 . . . in theory, each ballot could be cast with 0, 1, or 2 votes on it . . . in reality, each ballot would have 1 or 2 votes on it, most having 2 . . . 50 ballots with 2 votes (max) each = 50 x 2 = 100 total possible votes.

There should be no question as to how many households were represented in the vote, how many ballots were handed out and received back, how many votes were cast, and which candidates received however many votes.

With 100 total votes possible and management company reporting that total vote count is 103, this immediately gives reason to question things.

I got reply from HOA management:

My question:
"Number of ballots sent via proxy and initial vote was for me. Means resident already checked my name when they sent their proxy."
Management Answer: 9

This means, my 9 votes were changed. Since they "directed proxy", these votes cannot be changed, atleast my name cannot be scracted out.
Please confirm if this is not true.

Further, out of these 9 proxies, 2 of residents came to give me hard copy but I told them to email to HOA. Proxy name was empty so it means by default it went to President.
One of them had president's name scrached out and only my name was checked. Other has President and My name checked. Both votes changed by president in her favour.

I requested official review of election.

Please let me know what to next.

I cpleley agree with JohnC, Madan.

HOA mgmt updated the proxy and meeting vote count when I asked for it.

Before me, she already had majority. Current 2 board members are together since past 6-7 years. I filled 3rd vacant seat.
In this election I also voted for her. I thanked her and appreciated her work for being able to find time and work for HOA for past so many years.
Even if re-election are done, I am not contesting. But if president is altering the votes, then it is not ethically right. I hope that she accept the mistake and promise not to do this in next election.

Hard to follow what you're saying Madan.

On the one hand, you say that your name was crossed out and someone else's entered instead.

On the other hand, nothing in the copy of the document you provided has a place where your name could have been entered as a candidate.

Am I missing something?

2019 ANNUAL MEETING BALLOT
___________________________________________________________________________
I hereby cast my ballot for two (2) candidates to serve a 3-year term listed below to serve on the Board of Directors.

____ _________________________
____ __________________________
____ ____________________________________
____ ____________________________________

my earlier 2 post, somehow names did not show up.

So full summary from HOA mgmt:

1) resident received proxy form and ballot with 2 names(president's and my) printed on it in the mail in late september.
2) 25 residents sent their proxies (via email or hard copy). Some filled out President's name and some left it blank, which means by default president was proxy owner.
3) 9 of out of 25 above checked my name on the ballot.
out of these 9 ballot, At least one of them scractched president's name and gave me his/her vote. Please note that each resident could choose 2 candidates on the ballot.

On the meeting day

3) 12 families showed up, including 3 board members(President, treasure and me).
4) new candidate provided his/her own self-nomination form in the meeting,(allowed per bylaw)
so now there are 3 candidates on the ballot. People who send their proxy and ballot only knew of 2 candidates.
5) president presented 25 proxies and ballots. All these 25 ballots had 2 votes, President and New Candidate. My name from 9 ballots was scractched out.
6) out of 12 in the meeting, 4 voted for me, 11 for president, 9 for new candidate.

All 25 ballots sent with proxies, all 25 votes went to President and new candidate.
Even though my name of selected on 9 of these ballots initally.

final count:
President: 25+11=36
New candidate: 25+9=34
Me: 4

So much confusion and lack of propert terminology. The person who has been given the proxy by an owner is the proxy "holder", not "owner".

A proxy is not a ballot. What does it mean that the president "presented 25 proxies and ballots"? I think I know what you mean, but that's not a good way to describe it.

"All 25 ballots sent with proxies..." One should submit a proxy OR a ballot. Not both. If a proxy is named then the proxy holder should fill out a ballot and drop it in the ballot box. If someone gives their proxy AND submits a ballot, then what's on their filled-in ballot serves ONLY to direct the proxy holder how to vote; it's not really a ballot. The actual ballots sent in by those giving their proxy to another should not be placed in the ballot box. They're voting by proxy, not ballot, and the proxy holder should be the one filling in the actual ballot that is submitted.

If your election procedures and rules permit "abentee ballots" then an owner can fill in their own ballot and submit it. No proxy required. That is technically completely different than voting by proxy, no matter how much it may seem like the same thing.

I also agree you should be careful with printed ballots when you'll be accepting nominations from the floor.

IMO, very little of this is relevant.

What was described here is that your ballots are subject to manipulation. Any time that a document can be manipulated after the fact, there is a basis for challenging the entire election.

How do you know that the only alteration was crossing out names?
How do you know that new ballots weren't manufactured out of thin air by the folks running the election?

Sleazy deserves to be challenged.

Yeah, amen to that. The whole election described is tainted beyond redemption. With the procedures and actions described, there's very little reason to suppose that the actual will of the voters was carried out.

If you asked to review election results (meaning you physically wanted to count proxies, ballots, votes, etc.) and that is what they responded, then they are not answering your question . . . probably intentionally. However, their response could be accurate depending on perspective or interpretation of the ballots/proxies.

Unfortunately for you and fortunately for them is that the docs owners received in the mail (proxy and ballot) were vague and confusing enough that regardless of what actually happened with the documents, the MC and Board could claim the opposite was true. Either way you lose. The procedure (if you want to call it that) was sloppy enough (perhaps intentionally) as to confuse owners about what they were supposed to do or what the results of their actions would mean regardless of their intent.

If you want to challenge things officially, present your evidence/case to your neighbors, gather enough support (IAW your docs), and present to Board and MC. Would be harder for them to ignore a majority of owners instead of just ignoring you.

If they sent 2 documents, one a proxy and the other a ballot - there should have been a third document -- fully explaining how each of the other 2 docs would be used. In a prior post, I attached a copy of what we use. It spells things out clearly how things work in my HOA. You should have had something similar.

But that's not the issue that I reacted to. You said that a name was scratched out and another put in its place. To that, I cry "foul." Under no circumstances should anyone ever alter a ballot. Once alterations to a ballot are considered acceptable, they are open to any kind of changes. In your shoes, I could never trust an election where my altered document gets counted against the way I thought I was voting.

There was no 3rd document. The proxy and ballot was on the same page. This is what( please see below) all resident received.
Resident filled the proxy and selected candidate from the ballot. Does that mean it was not "directed proxy"?

---------------------------------------------------------------------------------------------------------------------

2019 ANNUAL MEETING
PROXY
PLEASE PRINT

I/we ____________________________________________________, being owners of the
property located at ________________________________________________, ,
and member(s) of XYZ Community Association, Inc. do hereby authorize and appoint the
President of the Board of Directors or____________________________(insert name of
homeowner who will vote on your behalf) who is a member of XYZ Community Association Inc,
to be my/our proxy, with full power of substitution to act and vote for and on behalf of
me/us at the XYZ Community Association Inc. Annual Meeting to be held .
This proxy shall remain in full force and effect until such time as it shall be revoked
by me/us in writing, until I/We transfer title to my/our property in, or by my/our attendance
at the meeting.

Owner Signature: ___________________________________________ Date: __________

Owner signature: ___________________________________________ Date: __________

If unable to attend this meeting, please complete and return this proxy to

email address:____________
Physical address: ______________________________

____________________________________________________________________________________________________________

2019 ANNUAL MEETING BALLOT

I hereby cast my ballot for two (2) candidates to serve a 3-year term listed below to serve on the Board of Directors.

____ President_________________________
____ MadanA__________________________
____ ____________________________________
____ ____________________________________