Membership told to send their proxy's to the Secretary

Looking for input here. Several Members have already told me that they simply signed their name on the proxy and mailed it to the Secretary. The Board wrote a (imo) confusing Meeting Announcement letter that basically said that all proxies need to be sent to the Secretary....or brought to the meeting (in small print buried in the paragraph).

How does this work if a Proxy is just blankly signed over to the secretary? It seems to me some shenanigans to give the Board a slush fund of proxies....

The proxies need to have a default holder because otherwise homeowners will not fill in a name either because they don’t know a neighbor or don’t understand the form. The Secretary is the appropriate board member for that role, unless they are running for re-election.

You are correct that board members can use these to control the outcome of the election. I always recommend using directed proxies (that require the proxy holder to vote as the member wishes) and having a checkbox that allows the member to designate their proxy for quorum purposes only.

But the reality is - most homeowners don’t care about their HOA election. They don’t read the proxy or take the time to understand what it means or know enough about who is running for the board to make a choice.

The rule for proxies is only the one with the most recent date counts. In other words, Owner Jones can still knock on doors and ask if Owner Rodriguez would like to assign her proxy to Owner Jones. If Rodriguez says she already submitted her proxy to the Secretary, Owner Rodriguez explains that a second, later-dated proxy can still be submitted, and it is the later dated proxy that will count.

If they’ve already gone out, you can’t. You’d have to cancel this election and start over.

But listen - you can’t save people from themselves. I once had a very unpopular board member get re-elected through proxies and the membership was upset and said they didn’t realize that’s how the proxy would be used. And as the attorney said “You signed it. It was your responsibility to understand what it meant before you signed it.”

At this point you need to educate your neighbors as to what the proxy does and how to revoke an existing one. But prepare yourself because odds are they just won’t care. (And if your me, swallow your irritation that grown adults somehow capable of buying a house have to be handheld through a one page form.)

I sympathize with your frustration. But you are one person and if your neighbors don’t care you won’t be able to change anything on your own.

If you want to avoid the perceived shenanigans, suggest using directed proxies.

Directed proxies not only authorizes the individual to cast a vote on their behalf, but specifies how the vote is to be cast.

General proxies, which I think most Associations use, allows the individual to cast a vote for what they think is best.

Is there no Robert's Rules type of action to Motion that all the Proxies just signed to the Secretary just be used for quorum purposes and not for a slush fund vote for the directors?

For me, the first question is: Are the proxies as written and signed valid?

-- What, if anything, do the Bylaws and state statute say about the use of proxies? The statutes and Bylaws trump Robert's Rules or any Board-created rules, by the way.

-- Do the Bylaws direct that these proxies be used to vote for the incumbent directors?

-- Do the Bylaws direct that these proxies are to be voted by the Secretary in any way the Secretary sees fit? Or by the Board in any way it sees fit?

The second question is: What can one do about unlawful proxies?

-- If the proxies violate the Bylaws, then a motion to reject the election, and run a new one, should be made. I think it's irrelevant whether the person who motions uses Robert's Rules or not.

The third question is: Is this HOA legally obliged to use Robert's Rules?

Regarding the validity of the proxies: I cannot tell what BillH10 is trying to say

It would have been nice if the proxies had given homeowners the option to authorize them for setting quorum only, designating someone to attend the meeting and vote in their place and/or nominate themselves or someone else for the board. This is how we use our proxies - the language was drafted by the association attorney. Our proxies also state the homeowner may also designate the board president to cast votes on his/her behalf.

It's up to HOMEOWNERS to read the damned things before signing them or voting for someone - that's what adults are supposed to do. You said in other conversations that your annual meeting (and that "bylaw approval" thingy) are rapidly approaching, so at this point, you might not be able to stop those proxies from being used if they were signed and dated appropriately. You could try to encourage all the people you spoke to (and a few more) to show up at the meeting and cast the votes personally - that would cancel out the proxy they've already submitted.

If you can't do that because there won't be enough time, the next best thing would be to request that the board consider rewriting the proxies to make them more clear as to what the homeowner wants done. Of course, that won't guarantee people will read it....you'll have to come up with something else to deal with the apathy.

So perhaps, if someone just signs their proxy and mails it to the Secretary, then it therefore cannot be used as a "directed" proxy since it wasn't assigned to a specific person?

If so, then asking to inspect and review the proxies will certainly stir up a controversy....

Per my reading of a bit of case law, and when it comes to proxies, boards are not supposed to go outside the four corners of the Bylaws and statutes. For example, suppose a Board decides, without authority from the Bylaws, to require proxies to be notarized. A court did in fact throw out this requirement (for notarization), emphasizing that the board could only require for proxies what the Bylaws required.

I cannot quite tell what BarbaraT1 is saying. Nor do I know what exactly was on the proxy form. But if there was a place to fill in a name for the person an owner wished to appoint as proxy, and the owner did not fill in a name, then from Idaho statutes and your bylaws, I reject that this gives the Secretary or the Board the authority to vote the proxy.

To review, the only thing your bylaws state on this matter is:

"Proxies must be in writing and filed with the Secretary at least twenty-four (24) hours before the appointed time of each meeting."

"Filed" in no way implies that either the Secretary or the Board has the authority to vote the proxy. "Filed" does not say anything about "appointing" the Secretary as the proxy for the owner. "I filed the proxy with the Secretary" is not the same as "I appointed the Secretary as proxy." The latter should be pointed out to the Board if and when you contest the election.

Nor do the Bylaws authorize the board to, say, amend the bylaws and, per 30-30-513 (7), provide for other conditions for the use of proxies.

The Bylaws have nothing more on this point, as far as I can tell. I also found nothing in Robert's Rules addressing this issue.

This brings us to:


From 30-30-516:
Corporate action based on the acceptance or rejection of a vote, consent, waiver or proxy appointment under this section is valid unless a court of competent jurisdiction determines otherwise.

If the board assumes that any proxy form that does not appoint a specific person does, in the board's eyes, mean that the person appointed the Secretary (or the Board) to vote the proxy, then this is a "corporate action based on the acceptance of a... proxy appointment" which "is valid unless a court of competent jurisdiction says otherwise.

By the way, if you pursue stomping out illegal actions, then I think you want to make sure the Secretary or some other wise guy does not start forging names (like their own name) on the proxy form where the name of the person appointed as proxy should go.

Augustin, I’m not sure what you mean by not knowing what I mean.

A very common way for proxies to be worded is to list the Secretary (or other officer if the secretary is running for re-election) as the default proxy holder. There will be a blank space available if the owner wishes to name a specific person.

So the proxy would say “…..appoint as my proxy Joe Secretary, Secretary OR ______________ …”

If they don’t put another name in the blank space, , the secretary is the proxy holder.

Of course we don’t know exactly how the OPs proxies are worded.

in your situation, the Secretary then is holding dozens of proxies and can then vote as the secretary deems fit? (for his/her incumbent buddies on the board)

Can you please quote what exactly your HOA's proxy form says?

Yes.

That is why people need to read it and understand what it means before they sign it. If they don’t want or trust a board member to vote for them, they need to name someone else or come to the meeting and vote themselves.

I did have one election where proxies were used to thwart the will of the people, so to speak. The board member who obtained them told people they would only be used for quorum and then when she realized she was about to be ousted she used them to save herself. The attorneys opinion was that it was the responsibility of the owners to know what they were signing and her change of mind wasn’t a valid reason to recall the election. But she resigned over the embarrassment of it all and we held it again anyway.

But most of the time elections are uncontested, or people drop out once they see that there are enough candidates, , or there aren’t enough candidates so we just beg someone to volunteer. Congrats, your board president is whoever made eye contact with me and didn’t have the heart to say no!

Oh gosh we’ve been debating the wrong thing all along.

So this requires the member to actually name someone and doesn’t provide a default holder if they don’t.

There’s nothing wrong with having them delivered to the secretary. The question now is how they are used, if no one is named as proxy. Presumably for quorum only, but personally I’d go back to the member and ask them to put in a name so they can actually be used for a vote.

If the proxy whose text AdamL1 posted is used, and no name is filled in the designated spot after the word "appoint", then neither the Secretary; nor the Board; nor anyone can act as a proxy for the owner who signed the proxy form.

If an owner put the word "Secretary" in the designated spot after the word "appoint", then I consider this to be the owner appointing the secretary as the owner's proxy.

I do not know what the above means.

And you think the LAST one was crystal clear???? At least he READS whatever's in front of him, unlike your neighbors - why else do you think you're in this mess?

Power concedes nothing without demand - your current board likely knows this which is why they knew they could send out these things, knowing people would just sign and return it without reading it.

The proxies are out there now, so you need to focus on getting people to show up and actually vote do those proxies can be voided, and then you can work on getting them rewritten for the next meeting.

Yep, a nice general proxy.
I've attached a directed proxy.