Members Not In Good Standing

In Virginia: A member who is not in good standing, because they have a balance on their HOA account, submits a proxy that at face value meets all requirements set forth in the Bylaws and is otherwise valid. The proxy is assigned to another member who attends the meeting. The proxy is discounted because their is an outstanding balance on the account of the community member who assigned his proxy to the neighbor.
My qustion is, if the proxy is really needed to ahieve a qourum will it be used for that purpose? The member is not present at the meeting, but the bylaws say "in person or by proxy".
If the answer is yes that it will count towards quorum, will the matters being voted on also be counted to determine the outcome of an election, or will those votes be discounted and the proxy be used only to establish quorum?

I agree with Ellen when she said: I am betting the bylaws say the owner cannot vote but are silent about the owner's presence by proxy or in person for purposes of quorum. I say the delinquent owner's proxy counts for quorum purposes but not for voting.

That said, I have heard of laws in some states where delinquent owners can vote on Covenant and/or Bylaw changes..

Correction to my above: Voters must be members at the "record date," which is a date set by the Board by which someone must be member in order to vote. (I think our record date is usually about two weeks before ballots are due; it varies)

That delinquent owners may vote was is CA legislation eff. 1/1/20.

Here is a copy of the text from the Bylaws. The meeting coming up will require 62 proxy's to establish quorum and 75% of the votes cast to make a changed to the declaration, which requires a vote from the membership. We are also voting for two vacant Board seats.This is a townhouse community, not a condominium development.

Section J. Voting.Voting at all meetings of the Association shall be on a one equal vote per Lot. The members representing at least 40% of the total voting interest voting in person or by proxy at one time at a duly convened meeting at which a quorum is present are required to adopt decisions made at any meeting of the Association.  No Member may vote at any meeting of the Association or be elected to serve as an Officer of the Association if said Member is delinquent in the payment of any Assessment.

ARTICLE X - AMENDMENT TO DECLARATION AND BYLAWS
Section A. Method of Amending
(a) Amendment. The Declaration and these Bylaws may be amended
by a vote of the members at a duly called meeting of the Association at which a quorum is present and for which notice was given in accordance with the provisions of the Virginia Nonstock Corporation Law in effect at the time such notice was given. Such notice shall state the proposed amendments to the Declaration or these Bylaws to be presented to the members for approval and shall contain the text of the amendments to be presented or a summary thereof. Any such amendment shall be deemed approved if three -fourths (3/4) of the votes cast by the Members voting in person or by proxy at such meeting are in favor of the proposed amendment, If any amendment to the
Declaration or these Bylaws is approved by the Members as set forth in this section, the President and Secretary of the Association shall execute an Addendum to this
Declaration which shall set forth: (1) the date of the meeting of the Association at which the amendment was adopted. (2) the date that notice of such meeting was given; (3)the total number of votes of members of the Association authorized to vote at such meeting (4) the total number of votes required to constitute a quorum at such meeting (5) the total number of votes presented at such meeting and counted to establish the presence of a quorum

I can address that. The POA act does not establish the declaration that governs the community. The Articles of incorporation only state that the community be governed in accordance to the Declaration. The article in our Declaration states that the Declaration and these Bylaws may be amended by a vote....:

(a) Amendment. The Declaration and these Bylaws may be amended by a vote of the members at a duly called meeting of the Association at which a quorum
is present and for which notice was given in accordance with the provisions of the....

So, I think it the proxy from the member who is delinquent on their account will be counted for quorum purposes only and their vote will not be counted.

Thank you for your interpretation of how this should go.

Part of this discussion wasn't making sense to me t so I visited https://law.lis.virginia.gov/vacodepopularnames/property-owners-association-act/. I say the verbiage that Elle cited;

"§ 55.1-1807. Statement of lot owner rights
Every lot owner who is a member in good standing of a property owners' association shall have the following rights:...
...2. The right to cast a vote on any matter requiring a vote by the association's membership in proportion to the lot owner's ownership interest, unless the declaration provides otherwise;"

But I don't see that a delinquent owner may vote now. The above specifically states a "member in good standing." One of you may wish to look up "in good standing," but in everyday language it means someone who is not delinquent in their dues (plus possible additional violations.) The way I see it, the member under discussion's note/proxy maybe be counted.

I'm happy to be corrected if I misunderstand the above citation or missed something. I, for instance, have no idea what the discussion about the declaration and the bylaws is about. I probably missed this? Are you on the Board, Bernie?

In my quick looksee at the same site, I observed "§ 55.1-1831, Reformation of declaration; judicial procedure." Only skimmed it but see that apparently Bernie's HOA Board may have recourse with the courts if they, as just on of many examples, cannot get a quorum after trying three times for meetings to amend the CC&Rs. Keep this citation in your back pocket, Bernie.

(CA HOAs also have recourse to the courts if an HOA cannot get enough votes for a super majority, e.g., 67%; 75%. th main qualification is that a majority of Owners must have voted to approve, along with several others)

I am the Vice President of the Association, I want to be prepared for the annual meeeting because there is a measure that is up for vote that will change the CC&Rs may be contested by the validity of the proxy's. As a Board member I review the financial reports and noticed that there a lot of homeowners are behind on thier assessments. Since the change that is being proposed will affect every single owners ability to manage their own real estate investments, I want to be sure tha the BOD will not be accused of allowing ballots that should be discounted.
The Virginia POA act does outline some rules of guidance for the Association, but at the end of the day everything is reverted back to the Articles of incorporation that are registered with the state. Then the Articles that we have are only 1 1/2 pages long and state, subject to the Declaration. So the Articles do not provide any guidance on governence, and even though the fact that the POA act may state one thing, the Declaration can override that with a vote by the membership if the Declaration allows it. In this case the Declaration requires a vote of 75% or more of the votes cast, after a quorum of 40% of the mebership who vote at the meeting, the measure will pass. We need 62 proxy's to meet the qourum and then 75% of the votes cast to pass it.
I need to reach the qourum of 62, and I don't want members who are legally "not in good standing" to be eliminated from reaching the qourum. I do have a problem if the these proxy's can be used to achieve the qourum, but will not be able to vote on the amendment. But it looks like they should be discounted.

I think the others who have chimed in on this agree, the proxy will count towards the quorum, the vote will not be couned. Our Declaration and Bylaws are in alignment and state that a member who is not in good standing cannot vote. It doesn't say that the proxy cannot be used towards the quorum if the member is not in good standing.

Thank you for your input

Stop guessing. Time for a legal opinion from your association's lawyer.