MysitifieD's Proxy Dilemna

Started by MaryA1 • 12 replies • 1735 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

⚡ Takes 30 seconds

Already a member? Log in

MaryA1 (Arizona)
Posts: 7,043

Posted:

Thought I'd better start a new thread because the original one has gone off on a different direction. I wanted to make certain everyone sees this, especially MystifieD. The topic was: can a member who is not in good standing be a proxy for a member who is in good standing?

After re-reading Glen's logic I was beginning to wonder if perhaps I was wrong. Hey, there's a first time for everything! LOL At any rate I contacted an internet friend who is real saavy about these type issues. I've known him for about 5-6 years and he is ALWAYS right. Well, he confirmed what Glen had to say. A member who is not in good standing has the right to vote a proxy for a member who is in good standing. A person can give their proxy to anyone, not just someone who has their power of attorney and that proxy holder does not have to be a member of the assn. Actually it's really very logical since the proxyholder is acting for someone else.

MystifieD (Texas)
Posts: 11

Posted:

MaryA1
(Arizona): Your diligence in my thread "PROXY vote ONLY by Member in good standing???" is appreciated. You're right, in the end the thread sorta' broke down. I even posted a little humor there myself. The thread basically never directly answered the original question. (Probably because of my subject wording.)

Our board passed a resolution in a board meeting the eve before the special meeting of members determining that "we would not issue ballots in exchange for proxies" brought into the meeting by non members or members not in good standing. This decision covered any proxy presented by the unqualified proxy holder (whether the proxy grantor or signor) was a valid member or not. We had one member who had recently transferred HIS property into his wifes name, therefore was NO longer a property owner. He had a proxy from a valid member (other than his wife). Another director of a corporate property owner showed up (without proper authorization to act for the corporate property owner) but had five proxies given to him by valid members. It was because of the boards prior decision (passed by 5 for and 1 abstention) that caused the secretary to refuse to issue ballots for those proxies.

Hence, the question, since NOTHING definative on the subject seems to show up in Texas statutes, the Bylaws, or case law: [ "Is it within the power of the Board of Directors to resolve that proxy votes cast for removal of board members - MUST be cast by a qualified member of the POA." ], or MAY be cast only by a qualified member of the POA.

That act is clarifying proxy voting where it is not specifically dealt with elsewhere. It is limiting proxy voting. I realize that. Is that within the boards authority. Is the decision VOID or merely VOIDABLE. Because we did it, and our Policies & Procedures Manual says that a decision of the board, once reduced to a resolution, may not be voted on again without first placing the matter on the agenda for a vote to "set the prior resolution aside". The "resolution to set aside" must pass by the same or greater number of votes as the original resolution or its dead. Then and only then can the matter be brought before the meeting for discussion and voting again.

I do not wish to beat a dead horse. I can see the logic being applied by both sides. It seems to be heading for a resolution to spend the money (which we don't have) for a written opinion from the Assn. counsel.

Meanwhile, it may become the subject of more litigation. That is no new thing in this association. The same property owner who orchestrated this petition to remove the majority board members has a lawsuit pending against the same majority board members for $20,000,000(yes that's 20 million )for defamation! It isn't going well for him but his new approach is a proxy war to throw out the majority of the board, and replace them with his supporters.

Oh the pleasures of serving in a volunteer position.

SusanW1 (Michigan)
Posts: 5,202

Posted:

1) Any rule or bylaw must be in compliance with higher laws, so your Board's ruling on proxy voting must dovetail with state laws.

2) At the next meeting, the Board can declare the vote null and void and re-schedule the motion to be presented at another meeting again. They must go thru all the same required procedures.

MaryA1 (Arizona)
Posts: 7,043

Posted:

MistifieD,

Oh, what a mess! I would suggest the board hold off going through the process of rescinding the resolution until such time as the attorney can render an opinion. And, yes, even though you're short on funds I think it would be wise to do this. Especially since I recall you saying you thought some members would be asking for a recount and might bring charges against the board. Since you have a member who is bent on causing turmoil it's imperative that the board do everything legally especially regarding elections. It would be so much easier to correct a mistake w/o a PIA homeowner just waiting to cause trouble! I hate to use the excuse "we're just volunteers", but it really is the truth. Members should realize that errors in judgemnent happen even in a "job-with-pay". The time to get upset is not when the error is made but if the BOD never learns from their mistakes.

BrianB (California)
Posts: 2,820

Posted:

in the absence of any law to apply to the case, a judge will do one of two things:

rule strictly based on his/her opinion (note, in some situations, a judge will ignore state laws and rule on their opinion regardless) of the matter. this is usually tough to predict.

rule based on "common sense" or "what similar situations do": A judge is very likely to ask "So what's the harm in allowing a person to give their LEGALLY ENTITLED vote to someone else to cast?" "Why does it matter who physically carries a piece of paper to a meeting?" "Does the mailperson who delivers a mail in ballot need to be legally allowed to cast a vote in the election? if not, why does this certain delivery person need to be?"

A proxy holder is simply that: they exist to carry a vote into a meeting, and cast it at the wishes of the legally entitled person who owns the vote.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Brian,

There are different types of proxies.

1) general proxy -- the proxy holder votes on all issues for the person who gave him the proxy
2) special proxy -- the proxy holder votes only on specified issues for the person who gave him the proxy
3) directed proxy -- the proxy holder votes as directed by the person who gave him the proxy. I suppose the proxy holder could just carry in the ballot already marked by the person who game him the proxy.

MystifieD never did specify whether or not the member who was not in good standing just carried in the ballot already marked or if he actually voted as a proxyholder. But, either way, it appears this person has a right to cast a vote as a proxyholder even though he cannot vote for himself.

BrianB (California)
Posts: 2,820

Posted:

Mary, you are correct. and in all three types of proxy, the holder votes the wishes of the original member: Vote this way, like i have marked
or
Vote this way only on this issue
or
Vote however YOU like, I don't care.

Even in the "vote how you want" version, it is still the wishes of the original owner of the vote that is being done. The proxy holder is carrying out the owners wishes to vote anyway, anyhow they want.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Brian,

Agreed! My first impression was that if the member was not in good standing he could be a proxyholder either. However, the logic of others have convinced me I was wrong about this. I guess I can chalk that up to a bout of "senioritis"! I think if you just remember what the word "proxy" means, the issue is quite clear. In this case, the BOD took the wrong position and I certainly hope they rescind it and proceed to correct the situation.

SusanW1 (Michigan)
Posts: 5,202

Posted:

I'd work to declare the election null and void and conduct a mail-in ballot vote.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Forgot . . . if the number of DISPUTED votes was not enough to alter the outcome of the vote, the entire process need not be declared null and void.

Any judge will ask you that.

You should have all the results of the vote count saved.

MystifieD (Texas)
Posts: 11

Posted:

BrianB
(Arizona): You make a very good case in "Does the mailprson who delivers a mail in ballot need to be legally allowed to cast a vote in the election?" Many others have also made very good points.

MaryA1
(Arizona): I suppose one would call our proxy cards a "general proxy". The proxy did not provide a means for marking or specifying the proxies specific vote. It is the board's opinion that Texas law does not allow "mail-in ballots" (or voting by mail or fax) in our case of absence of such provision in our bylaws. For this reason, a (blue) BALLOT card was issued to each valid member signing in at the special meeting, and a (yellow) BALLOT was issued in exchange for each proxy card (executed by a member in good standing) and carried in / presented by a _valid voting member_.

SusanW1
(Michigan): Your comments are likewise appreciated. I think mail-in ballots (or proxies allowing the proxy to specify his/her choices) would be a much improved method. I also think that would require a change in our bylaws - an almost insurmountable task with the association so torn at this stage.

Yes, records will allow accurate reconstruction of the vote count. And including the disallowed proxies _would_ change the outcome slightly-- but in a VERY interesting way -- which would ironically be even more disruptive as follows:

Of seven board members, the petition sought to remove four, who are also the President, Vice President, Secretary, and Treasurer.

A recount including the disallowed proxies would result ONLY in the removal of one (1) Board Member who ALSO happens to be President. That would leave a Board of Six, essentially "three" to "three". Of course removing the individual from the Board does not remove him from the Office of President. That would require a majority vote of the remaining board. That wouldn't happen as it would be deadlocked 3-3. The despised President would still Chair the meetings, he just couldn't participate in the deadlocked 3-3 votes.

Also, the remaining board could NOT appoint a replacement for the removed member by majority vote -- as it would also be deadlocked 3-3. Further, if the President threw up his hands and resigned, that would leave the Vice-President to become acting President. The Vice-president is actually more despised than the President -- (he just ran a more effective proxy campaign and was a less visable target than the President was).

OH what a tangled web we weave.

The members would have been far better off to just quietly wait for the October annual meeting and expend their effort getting their people elected to office filling the three board positions where terms are expiring. Instead, a certain group sought "instant gratification" of showing the Board who was the biggest of them all.

MaryA1 (Arizona)
Posts: 7,043

Posted:

MystifieD,

I'm a bit confused by the following remark you made: "Of course removing the individual from the Board does not remove him from the Office of President. That would require a majority vote of the remaining board."

If the individual is removed from the board how can he continue to be president. He can be removed as president and remain on the board, but not vice versa.

However, judging by what you had to say regarding the outcome of a recount, that is really a moot point! I don't think much would be accomplished by ending up with a split board unable to make any decisions. It appears to me the assn would be much better off to just forget about this election and just wait until Oct. and let their voices be heard at the ballot box. In the meantime, the board must resolve the issue of whether a member who is not in good standing is eligible to be a proxyholder for a member in good standing. Whatever they decide should be communcated to the members before Oct.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Normally, when a president/board member leaves, the VP moves up into the position (until the next election), and the VP slot can be filled by appointment or special election, along with any other vacancies in the Board. UNLESS your documents outline another procedure.

EACH person should have had his/her own vote to be recalled. So if you can prove that ANY person should has been recalled - because the proxy debaucle did NOT make a difference in the outcome - then enforce that and get on to goverance!

You MAY need to get (hire) a parliamentarian in there to sort all this out. Better that person than a judge!

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

✓ Ask follow-up questions
✓ Share your experience
✓ Get expert advice
✓ Access 350,000 discussions

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here