Annual Meeting/voting - Amendments and Directed proxies

Are there any HOA's that conduct the annual meeting and annual vote on the same day while allowing proxies(both general and directed) and amendments to articles? Thanks to this forum I recently discovered "directed proxies" and they are causing a minor disturbance.

A little background. Our annual meeting is governed by roberts rules which forbids proxies, but the NH Condo Act requires proxy voting be allowed. So, we have joined our mutually exclusive roberts rules annual meeting with proxies and this doesn't work well, especially with "directed proxies". Nobody questioned our process until I brought up "directed proxies".

During our annual meeting and voting day articles get debated and about 10% of the articles get amended so they are different than the articles on a "directed" proxy. The solution the Secretary has come up with is to void the "directed" proxy vote on any amended article. For this reason the BOD is telling owners that a "general" proxy is better which is not true.

My thinking is that our voting ballot should be finalized BEFORE voting day and amending articles should happen BEFORE voting day.

Any others that allow proxies and amended articles on the same day as the vote? If yes, how do you handle "directed" proxy if an article changes?

How this makes sense,
Thanks
John

In case I wasn't clear, the meetings should be on separate days. People may not have the time to devote to two meetings in one day.

Umm, what? you sure about that?

JohnS

If a Directed Proxy and what it was Directed to changes that much, I say the Directed Proxy may not be valid. Let us say the Directed Proxy agreed to raise the dues from 3% to 5% but the 5% was changed to say 6%. The Directed Proxy is no longer valid. Let us say the Directed Proxy was to decrease the BOD to 3 Members form 7 Members but the final Amendment was to decrease the BOD to 5 members. I say the Directed Proxy is no longer valid.

Thanks, That is my recommendation also. Separate the meeting from the vote. The challenge is convincing owners this is what is needed.

Any voting article could be amended which could slightly or dramtically change the article. For example, we could have an voting article that if passed could limit the number of dogs per site to 1. This potentially could be amended at the meeting to change the number to 3 dogs per site.

I'm not in favor of amending out ballot articles on voting day at all. I'm just stating how our system works. I've been trying to change our voting process for a few years and made some headway with Directed Proxies.

Thanks
John

okey-dokey

We have used directed proxies and held the vote for amending governing documents at the same time as elections at the annual meeting.

It's not that complicated.

Your voting ballot should have been finalized prior to mailing out the proxies as the proxies should have had the verbiage of the proposed amendment in it (see attached example).

When the members check in, the Secretary takes the proxy and hands a ballot (1 for each proxy plus one for the owner themselves). If the Secretary received a directed proxy, the Secretary would mark the ballot with a marker per the directions on the proxy, then hand the ballot to the member.

The secretary kept the proxy as part of the records of the annual meeting.

I think you've identified my issue.

Our voting ballot IS NOT finalized in our messed up process and that is the problem. I think it is a terrible process, but individual voting questions/articles get debated and can be changed/amended to something slightly difference with a 2/3 vote. So on average about 10% of the voting questions can change on the day of election.

I think my origial question was confusing due to my use of the word amendment. My real question is do you allow the voting ballot to change on election day. You don't and unfortunately we do.

Thanks
John

I think it depends what you mean by "change".

If you mean that someone wants to change their vote or name a different person to act as their proxy, then all they have to do is complete a new proxy form. This assumes that your proxy form is limited - ie, effective only for this particular meeting and for the purpose stated - and that it contains language on it stating that this form supersedes and voids all previous proxy forms. This is normal and acceptable, but it does require that the election monitors pull the voided proxy.

If you want to change other things, such as adding a new item to vote on or adding new candidates, I'd say that's a problem - for no other reason than you'll confuse the heck out of people, and this stuff is confusing enough when done correctly. It can also lead to accusations of election mismanagement or fraud, and why do that to yourselves? I think if you want to change items like this, you'd have to void all previous proxies and have people complete new ones with the correct text on it, and you can't do that at the meeting.

It's another reason I recommended that folks slow their roll and hold separate meetings on different days. Changing stuff on the day of the meeting suggests that things may not be under control. If a homeowner wants to change something, that's usually no problem. If the board or those in control are changing things at the last minute, I consider that a sign of trouble. Especially if what's changing is the text of an amendment - people should be able to know well ahead of time what they're voting on and what the consequences of their decisions will be, and they can't give thoughtful consideration to this if the board pulls the rug out from under them.

If the "dog" example is from your declaration, you probably need a very large number of owners to vote to approve a change. Maybe even 75%. I don't think it's likely that 75% of your owners attend the annual meeting in person or by proxy, right? You also need to take into account state law. In CA, for instance, we must permit 2 dogs or 2 cats or one of each in our condo units. So that is stated in our declaration.

First, this is an incorrect reading of Robert's Rules. What the current edition of Robert's Rules says is:

RONR 45:70-71 - "Proxy Voting. A proxy is a power of attorney given by one person to another to vote in his stead; the term also designates the person who holds the power of attorney. Proxy voting is not permitted in ordinary deliberative assemblies unless the laws of the state in which the society is incorporated require it, or the charter or bylaws of the organization provide for it. Ordinarily it should neither be allowed nor required, because proxy voting is incompatible with the essential characteristics of a deliberative assembly in which membership is individual, personal, and nontransferable. In a stock corporation, on the other hand, where the ownership is transferable, the voice and vote of the member also is transferable, by use of a proxy. But in a nonstock corporation, where membership is usually on the same basis as in an unincorporated, voluntary association, voting by proxy should not be permitted unless the state’s corporation law—as applying to nonstock corporations—absolutely requires it.

If the law under which an organization is incorporated allows proxy voting to be prohibited by a provision of the bylaws, the adoption of this book as parliamentary authority by prescription in the bylaws should be treated as sufficient provision to accomplish that result (cf. 56:49n1)."

[As quoted by a member of robertsrulesforumflash.com] Emphasis added is mine.

The courts treat HOAs as "stock corporations," where the members are, for all intents and purposes, shareholders.

Second, Robert's Rules themselves state that any conflict between Robert's Rules and either the bylaws, Articles of Incorporation and the Declaration are resolved in favor of either the bylaws, Articles of Incorporation or the Declaration.

Third, about changing a proposed amendment at the meeting itself: To me the problem is that once a change to a proposed amendment is put forth at the meeting itself, the notice for the meeting is no longer correct. Furthermore, to allow even minor changes at the meeting itself is taking a step down a slippery slope. What some people think is minor to other people may be substantial.

Fourth, amending the bylaws, articles of incorporation or the CC&Rs is an amendment to a legal contract. Only an attorney should be doing the writing of any proposed amendment. Keep reading here and you will see why HOAs and COAs should not have amateurs writing any amendments (with the exception of maybe a first draft, to then be forwarded to the HOA/COA's attorney).

For good reasons.

Aside from any legal issues regarding this (eg. violating notice requirements), there is the pragmatic issue of the change invalidating previously submitted proxies. You've essentially disenfranchised everyone who has submitted their proxy prior to this since they voted on the wrong thing, and there probably isn't time to contact each of them and have them complete the revised form. Pretty sure this would be grounds to throw out the vote entirely. And if this has happened in the past, it raises the question of whether any of the provisions that were "approved" are in fact invalid. (I would say "yes, they're invalid", but I'm not a lawyer.)

There is also the issue of making the board look like they don't have a handle on things, which is counterproductive. The board's job is tough even when things are humming along the way they should.

Look, JohnC73, again at the practical level, if 2/3 of all owners need to approve every bylaw amendment that suddenly emerges AT the Assn. meeting, would there be enough in attendance in person to = 67% of all Owners?

Btw, 67% to change the bylaws is unusually high. Are you sure about that %? Can you cite that exactly in your bylaws?

Sorry, it is 2/3's of voters, not owners. We have 456 owners and typically have less than 300 voters of which 100 are "general proxy" voters.

I will dig up the rules that state changes require 2/3. Now I'm questioning many things - lol

Thanks
John

For the longest time it was 50%+1 voting requirement to change a by-law, but then in 2015/2016 the NH Condo Act was born or amended, not sure which and it now requires 2/3 vote. Here is NH RSA 356-B:34 - section II defines the voting requirements to change the condo instruments.

356-B:34 Termination of Condominium or Amendment of Instruments After Conveyance of Unit. –

I. If there is any unit owner other than the declarant, then the condominium shall be terminated only by the agreement of unit owners of units to which 4/5 of the votes in the unit owners' association appertain, or such larger majority as the condominium instruments may specify.

II. If there is any unit owner other than the declarant, then the condominium instruments shall be amended only by agreement of unit owners of units to which 2/3 of the votes in the unit owners' association appertain, or such larger majority as the condominium instruments may specify, except in cases for which this chapter provides different methods of amendment. The procedures established in RSA 356-B:54, V shall be followed for amendments to extend the time limits for conversion, expansion, or contraction of a condominium.

Ours reads like this:

“Except as otherwise provided in this section, these Bylaws may be modified or amended either (1) by a vote of a majority of the Lot Owners at any regular or special meeting, provided that notice of the proposed amendment shall have been given to each Lot Ownerat least ten (10) days in advance of such meeting”

As seems to be typical with these things, IMO it is not clearly written. If 50 owners are present, and 26 vote for an amendment, that would be “a majority of the lot owners at the meeting” even if there are 200 lots. Naturally this is not how it is usually interpreted. But, also as is typical, if the board interprets it the first way then that is how it is going to be until someone is willing to lawyer up.