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LynneV1 (South Carolina)
Posts: 211
Posted:
We are having an election on Oct.19th and the mgmt company emailed a voting package and stated, they enclosed "a Proxy Form that we kindly ask you to complete and return regardless if you plan on attending the meeting or not."
They want the proxy mailed, emailed or dropped off at their office two days before the election. There is one opening for the board this year. Since the board and the management company are very close, and apparently these will not be sealed votes, especially if they are emailed, I don't think they should get them two days before. I think people attending should be able to bring in their neighbors proxies.
Also, it was stated that "if you don't select someone to be your proxy, the highest member of the board currently serving would be the proxy". This means the president would vote for 'his neighbor' who's running for the board, who he appointed to the board before she was elected to the board last year for the 1 yr term.
There is only one other person running against this incumbent director and he wants to be able to bring some proxies in on his own the night of the election. That's how we've done it in the past. So I'm not sure why this year they want them two days before. I feel this gives them a chance to. count the votes two days early and go out and solicit extra votes For their choice. Any opinions?
TerriS6 (California)
Posts: 3,284
Posted:
If they existed, I would check your CC&Rs, the association's election rules, the state's HOA election rules, and the corporation's code election rules.
I California, proxies can't be used as ballots. Does your Declaration require secret ballots. There must be a mandatory timeline somewhere,
TimB4 (Tennessee)
Posts: 21,061
Posted:
As Terri pointed out, proxies are not ballots (but many do see it that way).

In general there are two types of proxies.

A General proxy, where the member designates someone to represent them and vote on their behalf as the representative believes is best.

A Directed proxy, where the member designates someone to represent them and vote on their behalf but directs them to cast the vote a specific way.

Proxies are not secret.
If you want your vote to be secret, then don't use the proxy and show up to the meeting to cast the vote yourself.
LynneV1 (South Carolina)
Posts: 211
Posted:
Our bylaws state. voting members may vote in person or by proxy. I'm concerned that they sent this out saying yes, I'll attend or Noah might attend. That's section A. Section B is appointment of proxy section. C is for the election. You picked one or you picked the second. at the bottom it says please complete and return no later than Tuesday. 5:00 PM the election. is Thursday. Last election, the president came in with 60 proxies in his hand voting for him and the other 4 incumbent directors(his friends) running . And we had six-ten people at the meeting voting in person.
We were told to email our ballots, but only I did, and my sister did. so they had those two, and they knew who we were voting for Not that it mattered. This year, it matters. There's one opening and two people running. If they know in advance how many people. voted two days before they could solicit more votes.

I am thinking maybe they should have said, if you're attending the meeting, don't send this in. But the directions state, everyone must vote two days before and send in their votes. Before the meeting. And again, if three or four of my neighbors give me their directed proxies, I should be able to walk in and submit their votes that night.

Our CCR states voting procedures, "should be governed by this declaration., the South Carolina not for profit corporation code, article of incorp and the bylaws." That's all.
LynneV1 (South Carolina)
Posts: 211
Posted:
I'm sorry. When I dictate and I take a breath, it puts in a period. I have to proofread better.
TimB4 (Tennessee)
Posts: 21,061
Posted:
You were provided a directed proxy form.

It happens all the time.

The board asks that you return the proxy to them, likely hoping to have enough to achieve a forum.

Of course, you can use that form or make one of your own and give to your neighbor.
The form you make will then be turned in at the meeting and kept by the Association (as it will become part of the Associations records).
Yes, you may be the proxy representative for your neighbors. However, your neighbors will have to make sure that your name is written on the proxy form as their representative.
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By LynneV1 on 09/21/2023 11:02 AM
We are having an election on Oct.19th and the mgmt company emailed a voting package and stated, they enclosed "a Proxy Form that we kindly ask you to complete and return regardless if you plan on attending the meeting or not."
They want the proxy mailed, emailed or dropped off at their office two days before the election.
They have requested this. They have not ordered it. This is legal.

Here's the deal: The Board cannot add restrictions that are not in the bylaws or covenants. A requirement to complete the proxy and return it two days in advance would likely not stand up in court.

Quote:
Posted By LynneV1 on 09/21/2023 11:02 AM
Also, it was stated that "if you don't select someone to be your proxy, the highest member of the board currently serving would be the proxy". This means the president would vote for 'his neighbor' who's running for the board, who he appointed to the board before she was elected to the board last year for the 1 yr term.
This is legal. But owners also have the right to prepare a proxy form that meets the requirements of state law and the bylaws and then assign whom they want as their proxy using this form, with the person serving as the proxy attending in person at the meeting.

The big question is: Are you willing to lawyer up if the board refuses to accept a proxy form submitted at the meeting itself?
LynneV1 (South Carolina)
Posts: 211
Posted:
Thank you for your advice. I feel better. I will pass it on to my neighbors and hopefully we don't have to get a lawyer, but we will stand up on election night make sure that they do count the people that walk in to vote and the people that bring a proxy.
I just never heard of this before but if you think it's a normal procedure, that's good to know.
I'll let you know how it goes in 30 days.
(ps. What I was trying to say in the prior post was, part A asked :
1)____ yes, I will attend.
or
2) ___no, I will not attend.
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By LynneV1 on 09/21/2023 2:01 PM
I just never heard of this before but if you think it's a normal procedure, that's good to know.
To mislead owners about how proxies work is pretty common. Though arguably the misleading is due to the board or manager being uneducated on the subject. In addition owners often do not understand what a proxy is.

I do not think the two day request is normal. But again, since so far it is only a request, no legal harm, no foul.
LynneV1 (South Carolina)
Posts: 211
Posted:
Just to clarify their letter states , "PLEASE COMPLETE AND RETURN TO THE ASSOCIATION OFFICE NO LATER THAN 5:00PM Tuesday, October 17, 2023 "
I left out a period. I added the election is Thursday night. So this is not a request. This is a statement. It's not a suggestion. But as long as you say that we can bring in proxies in person, and they have to count them, we will stand there and make sure they count them. We rarely have a quorum, which is 51%.. and last year, they didn't adjourn (which would cut the quorum to 25.5 %). They just accepted the proxy/ballots brought in and the votes from several people that showed up.
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By LynneV1 on 09/21/2023 3:25 PM
Just to clarify their letter states , "PLEASE COMPLETE AND RETURN TO THE ASSOCIATION OFFICE NO LATER THAN 5:00PM Tuesday, October 17, 2023 "
I left out a period. I added the election is Thursday night. So this is not a request. This is a statement. It's not a suggestion.
It also does not give an ultimatum, like, "Any proxy form submitted after October 17 will be invalid."

If you want validation that this board or manager are playing games, you have it. But if you want validation that the board/manager broke the law or violated the bylaws, then my opinion is that so far, they appear to have broken no law. Nor have they violated the bylaws.

If the HOA refuses proxy forms brought to the meeting itself, then and only then will owners have something legitimate to gripe about AFAIC.
TerriS6 (California)
Posts: 3,284
Posted:
This is from SC nonprofit corporations code which says votes for directors can be turned in AT the annual meeting:
SECTION 33-31-804. Election, designation, and appointment of directors.

(a) If the corporation has members entitled to vote for directors, all the directors, except the initial directors, must be elected at the first annual meeting of members, and at each annual meeting thereafter, unless the articles or bylaws provide some other time or method of election, or provide that some of the directors are appointed by some other person or designated.

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