File Proxy with Secretary

Started by BH5 • 11 replies • 888 views

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BH5 (Virginia)
Posts: 84

Posted:

Our bylaws state:

"Proxies: At all meetings of members, each member my vote in person or by proxy. All proxies shall be in writing and filed with the secretary."

This has been interpreted to mean that the secretary is the proxy person. It was pointed out by a resident that that is not exactly what this says. That "filing" does not say the secretary is to serve as the proxy. I think they have a point.

What do you think?

BenA2 (Texas)
Posts: 1,273

Posted:

I think "filed with the secretary" means that you deliver the proxy to the secretary and in no way implies that the secretary is the proxy.

AugustinD
Posts: 5,144

Posted:

I agree with BenA2.

Anyone arguing that the Secretary is the legal proxy for the person who filed the proxy form is itching for a lawsuit.

BH5 (Virginia)
Posts: 84

Posted:

Thanks.

The next question is: what does "filing" mean. What is the Secretary expected to do with "filed" proxies. Count them? Ensure they are correctly completed?

BH5 (Virginia)
Posts: 84

Posted:

Thanks.

The next question is: what does "filing" mean. What is the Secretary expected to do with "filed" proxies. Count them? Ensure they are correctly completed?

AugustinD
Posts: 5,144

Posted:

I do not see any law on the topic of what "filing with the secretary" means. I would take it at its 'plain meaning' but also, within the context of whatever else your Bylaws say about proxies. To me, the plain meaning is that the proxy forms are submitted to the secretary (by mail, by hand delivery, or by whatever means preserves the integrity of the election). The secretary works with the election committee/supervisor/whomever is tallying to get them the proxy forms in a manner that complies with the Bylaws, being mindful of how HOA/condo members do not like any appearance of improprieties with ballots or proxy forms.

I do not see anything helpful in either the Virgina Property Owners Association Act https://law.lis.virginia.gov/vacodepopularnames/property-owners-association-act/ or the Virginia Condo Act https://law.lis.virginia.gov/vacodepopularnames/condominium-act/.

MarkW18
Posts: 1,290

Posted:

All filing means is giving them to the Secretary of the association. Proxies are used for corporation of which the association is one.

As far as who the proxy holder is will be stated on the proxy. It is common on older associations for the Secretary or another member of the board to be the proxy holder, UNLESS the proxy giver assigns someone else.

SheliaH (Indiana)
Posts: 6,964

Posted:

As others have said , this simply means the proxy is sent to the Secretary, but doesn't mean he or she votes in your behalf. I'm sure there were instructions on the proxy about naming someone to vote on your behalf, which is the purpose of the thing. This would also mean if you named the Secretary as your proxy, he or she would be authorized by you to vote on your behalf.

And if you showed up at the meeting in person, the proxy should be tossed and you would cast your own vote. At least this is how it works in my community. Sounds like you and/or your neighbor are over thinking this.....

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By SheliaH on 04/29/2020 6:50 AM
As others have said , this simply means the proxy is sent to the Secretary, but doesn't mean he or she votes in your behalf. I'm sure there were instructions on the proxy about naming someone to vote on your behalf, which is the purpose of the thing. This would also mean if you named the Secretary as your proxy, he or she would be authorized by you to vote on your behalf.

And if you showed up at the meeting in person, the proxy should be tossed and you would cast your own vote. At least this is how it works in my community. Sounds like you and/or your neighbor are over thinking this.....

I agree.

BH5 (Virginia)
Posts: 84

Posted:

Yes, we toss proxies if the meeting is attended by the proxy submitter.

But, the question of the Secretary being a proxy has come up since most people agree that having someone on the board that can cast most of the votes makes for obvious conflict of interest. Not that it will necessarily happen. Someone pointed out the wording "file" does not say the Secretary is to be the proxy. But for 30 years this has been being done on the assumption it means they are to serve as proxy.

We are reviewing all our regulations and want to amend as necessary to clarity and avert any future problems.

Thanks

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Our Property Owners Association proxy form says, under a blank line to be filled in, "If blank then the Secretary of Assoc. is hereby appointed."

TimB4 (Tennessee)
Posts: 21,059

Posted:

As others have said, the point is valid.

The proxy statement is given to the secretary to be filed with the minutes, ballots, etc. of the meeting.

The member may designate anyone to be a proxy representative for them.

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