Are Proxies Private?

Started by ShantellH • 50 replies • 3469 views

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ShantellH (Florida)
Posts: 5

Posted:

There has been a dispute brought up from two disgruntled former Board members and several HOs. They are requesting copies of the proxies given to another member, who used them and voted them out. I want to know what the protocol is when someone asks for the proxies. Voting is secret and it seems plausible that the proxies are too. Who would want to give a proxy only to be harassed by the defeated side? Is there any precedent for this? Thank you!

JohnK3 (Pennsylvania)
Posts: 967

Posted:

So someone could pull a Joe McCarthy - you know, shake a handful of papers, say I've got the names, then not reveal them?

If somebody wants to see proxies, they should be shown them. The alternative would be sorta silly, eh?

DonnaS (Tennessee)
Posts: 5,671

Posted:

Shantell,
I do not know of any precedent on this subject. During the counting of votes during an election, it is always wise for a Board to have spotters or other members of the HOA to sit in and monitor vote counting either by an appointed committee or by the candidates themselves having a member watch for them.

Once those votes are counted and there is not a recount requested, then those ballots go into archives and are saved for a year. They are not open for viewing unless God forbid, a recount is ordered by a court. I just have to say, once the meeting is ajourned, it is over and if someone suspected a foul play, that should have been addressed at that time. Boards have enough baggage to carry without having someone crying foul. Yes, corruption can occur but take care of it right away. It isn't like the election of 2000 where we did not know who the President was for 6 weeks.

AnneM2 (North Carolina)
Posts: 30

Posted:

Our proxies are verified and votes are counted by a committee of three - a sitting board member, a representative from the management company and an owner picked at random from the meeting.

GeorgerwilliamsW (Indiana)
Posts: 975

Posted:

Quote:

Posted By ShantellH on 02/20/2009 11:01 AM There has been a dispute brought up from two disgruntled former Board members and several HOs. They are requesting copies of the proxies given to another member, who used them and voted them out. I want to know what the protocol is when someone asks for the proxies. Voting is secret and it seems plausible that the proxies are too. Who would want to give a proxy only to be harassed by the defeated side? Is there any precedent for this? Thank you!

In commercial law (under the uniform code) a proxy is a type of a power of attorney. As such it has the same confidentiality as the vote itself.

If the vote is by secret ballot, it is sufficient to show a properly executed proxy in order to receive the appropriate number of ballots. The person holding the proxy is not required to disclose how h/she has been instructed to vote.

Unfortunately, if a proxy is a directed proxy, in most instances specific voting instructions are included on the proxy instrument itself, making it nearly impossible to keep a proxy vote confidential. However, there is nothing preventing a directed proxy to be in two parts: a proxy which is not confidential, and the directed voting instructions on a separate page which can remain confidential.

The board of directors of a homeowners association does not have any duty whatsoever to assure that a directed proxy is voted according to instructions. It is only the duty of the board to verify that the proxy is valid.

How a proxy is voted, either properly according to instructions or improperly, is strictly between the proxy and the homeowner. The board or candidates for election have no standing to contest how a proxy was voted.

With all that said, Florida may have statutory or case law that would support a different conclusion.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Thank You George. IMHO. not everything in life should be open to scrutiny and voting is one of them.

ShantellH (Florida)
Posts: 5

Posted:

AnneM2 - Our proxies were verified and votes were counted by a committee of three just like you said. However, the proxies were not notarized proxies and were verified to the degree that yes, that is the name of the homeowner and no, they do not owe any dues. I suppose someone could have forged all the proxies they brought in and who would really know. The problem now, a month after the elections, some disgruntled Board members want copies of these proxies, perhaps to verify them on their own. Now, if they are allowed copies of the proxies, those HO's could be harassed by the defeated side. Who would give their proxy if they thought that would happen?

Anyway, the disgruntled Board members are just grasping at straws. I was just wondering if there was any rules, laws, etc. regarding giving copies of proxies to anyone who requests them.

Thank you.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

I don't know if what George says is 100% right across the Board but it is clear that the proxies do not normally contain names. Of course they are normally sumitted with a qualifed voter on the outside, verified and that outter envelope is discarded and the VOTES are counted. The only help having the proxies in hand would be to justify the announced vote with the directions on the proxys.
I think I read somewhere about all proxys being kept 3 years, but there is no mention of the envelope that contained the proxy.

SusanW1 (Michigan)
Posts: 5,202

Posted:

There seems to be confusion about whether these folks think they filed an absentee ballot or a proxy.

There would be no way they could backtrack their PROXY, since they assigned the vote over to another person to vote as that person wished. The only thing in the file should be the "permission slip" i.e. the proxy form assigning the voting privilege over to the other person.

Anthing else would be the simple act of carrying an absentee ballot to the meeting.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Susan,
It doesn't work like that in Florida. There are no absentee ballots, only limited proxies. I have been at a meeting where a person carried in 19 proxies and voted as he pleased except for 3, which had directed him on which candidate they wanted. We knew about the 3 because he stated that he had 3 directions.

KevinK7 (Florida)
Posts: 1,343

Posted:

I would think that if there is question about the proxies, the BOD should disclose who issued them.

I interpret it as so:

A ballot may be secret. A homeowner signs a proxy over to a Board Member. The Board Member claims they are using proxies towards a particular item. Because that homeowner signed over their say to the board member and the board member is using their proxies to act, then it is reasonable to say that the intent of those votes are no longer secret.

Because of the nature of the complaint, I believe disclosure should be allowed... or if allowed, ask the homeowners to revoke their proxies and hold another vote.

GlenL (Ohio)
Posts: 5,491

Posted:

IMHO if there is a question with the proxy it is between the alleged proxy giver and the BOD not a third party. Meaning if one of the defeated members came up to me and said: "Glen, did you give Donna your proxy?" If I said no then it would be up to me to go to the BOD and verify the signature on "my" proxy. Of course they could secure my power of attorney to look into the matter for me.

BTW, Proxies are not normally notarized.

Studies show that 5 out of 4 people have problems with fractions

JuanB (Florida)
Posts: 38

Posted:

Quote:

Posted By ShantellH on 02/20/2009 11:01 AM
There has been a dispute brought up from two disgruntled former Board members and several HOs. They are requesting copies of the proxies given to another member, who used them and voted them out. I want to know what the protocol is when someone asks for the proxies. Voting is secret and it seems plausible that the proxies are too. Who would want to give a proxy only to be harassed by the defeated side? Is there any precedent for this? Thank you!

There is an idea for the elimination of the Proxies and substitute them with Owners Voting Ballots. Proxies are not trustable tools of the Members Homeowners and lately had become a tool of crocks and fraudulent figures inside communities and Association Board of directors.

To support this idea of change the CCFJ as working with Representative Julio Robaina in this and many issues. Participation is welcome and appreciated in

http://www.ccfj.net/

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Juan,
I don't know what to say that is not going to tick you off, but maybe I could start by saying this site is sort of like a home that you m,maybe grew up in. We are a collection of different people living in a fair small INTERNET house. After a fashion we grew up together and like other large families we have lots of people coming in and out the door. We expect all who enter to go in the fun and games and post on this site. We have lurkers and we have folks that buzz through and never stop. But we all know we are we must abide by the rules of the house. You have already come into our house and tried to bully one of us, which means you tried to bully all of us. That is not going to happen. It is a small mater that you now have hijacked another's post, but it is not done on purpose.
Before you start swinging away, please understand that your problems are not new or unique, they are just new and unique to you. We all understand better than most these are very difficult times in HOA's because of a lot of wrongs and the pursuit of greed and power, there is none here that posts regularly carrying around that guilt. What you will find is great comfort knowing each of us are your kindred soul and we have been over your road and worse.
You sound like a straight shooter and aside from you desire to pick a fight, you seem like a straight shooter. You have a language barrier, but we can work around that.Why not chill out a little and start reading some of the post here, check the search feature on this page upper right, root through some of the links on the left side of this screen highlighted in yellow, some have great library source and some have case law references and all are free to use, they really are in this HOA Business.
I hope you don't take this post as some sort of attack, just trying to help you with your concerns, and we can and will help and could care less if your name is Juan or Igor. Try breaking your concerns down into power point and post the that way. Ask for specific answers and give us a little credit for having some abilities. As I said we are a large family, we also live apart and have a varied experience pool, you are welcome as all are, just play by the rules. They are also posted on the same page that you posted on.

KevinK7 (Florida)
Posts: 1,343

Posted:

Quote:

Posted By GlenL on 02/20/2009 9:00 PM
IMHO if there is a question with the proxy it is between the alleged proxy giver and the BOD not a third party. Meaning if one of the defeated members came up to me and said: "Glen, did you give Donna your proxy?" If I said no then it would be up to me to go to the BOD and verify the signature on "my" proxy. Of course they could secure my power of attorney to look into the matter for me.

BTW, Proxies are not normally notarized.

The only problem I see with this scenario is in my particular neighborhood, proxies are collected from those who do not attend or do not participate in the functions of the association. I do not know if that is the same for every neighborhood, but I see to many instances of fraud if they are not regulated or if there is no procedure in case of dispute.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Juan,

CCFJ represents the other side of the coin in HOAs and those who are anti Board or HOA. They do have valid concerns but I believe that they are also slanted against most Board structure. I read them often just to keep abreast of what owners are complaining about the most. So your reccomendation of going to CCFJ will be considered for what it is and that is an opinion other than what we stand for here. But Thank You.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Donna,
I wonder what you would think of CCFJ, I also read there and feel much the same. I suppose both sides (so to speak) have their faults, but I'll tell you what. From the looks of this HOA furture as far as this sub prime mess is concerned, we all may find ourselves in the same barrel fighting to stay alive. Crises makes strange bedfellows.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Robert.
When I bought my first rental in S. Florida, immediately after the purchase, when some of the neighbors found out that we were going to rent it out, they went into a full blown anti renter march. Within a month, while we were still restoring the unit, they had an amendment out to the members to not allow renting of any units. Being green, I went on a search to find out if they could do that to us seeing that the purchase had already gone thru and our 1st tenants were lined up to move in.

I came across CCFJ and started to work with their information. They actually did not provide me with information that I could use but doing further searches, I found HOATALK. It was here that a few provided me with some sound input and where to look for help. It was my original posting subject. I am still here and still finding answers to questions that I do not have answers to.

The end to the anti rental amendment also was a beaut!. The Board filed the amendment as passed, even tho the count of yeses was not sufficient to pass. They needed 154 to pass and had 141. Myself and the other rental owner hired a BIG MEAN LAWYER, he wrote 1 letter and the Board had to recind the amendment with the County. This is the same community that I chaired the Documents committee for 2 years afterwards. A 55+ place with 230 villas. Go Figure.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Juan,

Donna is correct -- CCFJ is definitely anti-HOA. They think everyone is corrupt except the HOA members!! If you have those feelings, frankly you are on the wrong message group. There may be some who complain about their BOD, manager or attorney, but I've never heard anyone say CAI and all BODs, managers and HOA attorneys are corrupt. Our only goal here is to offer assistance.

KirkW1 (Texas)
Posts: 1,665

Posted:

Proxies are not private in that it is a matter of record who has assigned another person to vote on their behalf. When there is direction on the proxy, then there will be some loss of privacy. But that need not be a total loss of privacy.

First, you have to trust someone. To that extent you have the trusted person create the ballot marked in accordance with the proxy. Then a copy can be made of the proxy with the vote redacted.

As for the "abuse" of proxies, I personally see this as a non-issue. There is nothing to keep either side of an issue from collecting proxies from those not involved. When we were getting ready for turnover I collected a number of proxies. I told people outright that I would vote for myself for the Board and otherwise I would vote what I believed to be the best interest of the neighborhood. While not everyone who was asked signed over a proxy, most did.

The thing is that anyone else would be quite capable of doing the same.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Kirk,

One form of proxy abuse that occurs frequently is when the BOD states that a proxy can only be given to a board member. It's this type of abuse that led AZ to prohibit the use of proxies.

AnnaD2 (Florida)
Posts: 960

Posted:

Mary, I wish Florida would follow Arizona. I (personally) have no use for proxies. As Donna stated earlier one person showed up with 19 proxies. (I believe the Florida law is that no one can hold more than five.) But that is easy to get around.

We have one person here who has "befriended" every old lady she can get her hands on and makes SURE she gets ahold of their proxies and ASSURES them that she'll "take care" of things for them.

KirkW1 (Texas)
Posts: 1,665

Posted:

Quote:

One form of proxy abuse that occurs frequently is when the BOD states that a proxy can only be given to a board member. It's this type of abuse that led AZ to prohibit the use of proxies.

I don't see this as proxy abuse, I see it as an abuse of power. And I do think it is a gross abuse of power. Further, I would have no issues with making such abuses a Class A Misdemeanor (allowing for a short stint in the local jail in most places).

BarbaraD6 (Florida)
Posts: 347

Posted:

Anna,
I didn't know tht florida had on law on a max number of proxies. Can you direct me to it.
thanks
Barbara

ShantellH (Florida)
Posts: 5

Posted:

Florida does not have a max. number of proxies that a member can bring. If someone can convince 100 people to give them their proxy then that's okay.

AnnaD2 (Florida)
Posts: 960

Posted:

I'll copy the statute a soon as I can.

JosephW3 (Colorado)
Posts: 12

Posted:

Proxies are private. The vote count is not.

JosephW3 (Colorado)
Posts: 12

Posted:

what a completely ignorant statement, John.
Proxies and their votes are private, the number of votes is not. ask al franken.

JuanB (Florida)
Posts: 38

Posted:

Quote:

Posted By RobertR1 on 02/21/2009 3:54 AM
Juan,
I don't know what to say that is not going to tick you off, but maybe I could start by saying this site is sort of like a home that you m,maybe grew up in. We are a collection of different people living in a fair small INTERNET house. After a fashion we grew up together and like other large families we have lots of people coming in and out the door. We expect all who enter to go in the fun and games and post on this site. We have lurkers and we have folks that buzz through and never stop. But we all know we are we must abide by the rules of the house. You have already come into our house and tried to bully one of us, which means you tried to bully all of us. That is not going to happen. It is a small mater that you now have hijacked another's post, but it is not done on purpose.
Before you start swinging away, please understand that your problems are not new or unique, they are just new and unique to you. We all understand better than most these are very difficult times in HOA's because of a lot of wrongs and the pursuit of greed and power, there is none here that posts regularly carrying around that guilt. What you will find is great comfort knowing each of us are your kindred soul and we have been over your road and worse.
You sound like a straight shooter and aside from you desire to pick a fight, you seem like a straight shooter. You have a language barrier, but we can work around that.Why not chill out a little and start reading some of the post here, check the search feature on this page upper right, root through some of the links on the left side of this screen highlighted in yellow, some have great library source and some have case law references and all are free to use, they really are in this HOA Business.
I hope you don't take this post as some sort of attack, just trying to help you with your concerns, and we can and will help and could care less if your name is Juan or Igor. Try breaking your concerns down into power point and post the that way. Ask for specific answers and give us a little credit for having some abilities. As I said we are a large family, we also live apart and have a varied experience pool, you are welcome as all are, just play by the rules. They are also posted on the same page that you posted on.

I do not understand when you say that I tried to / or bully all of you.

I do not want for all this to go lost in translation. I never ask about me, or me, or me, or me like everybody else.

I brought a situation it was my 1st post.

Later I was asked to describe my problem.

I describe my problems and I had been called a “bully”

I do not need gratification or solution for my problem here. I know that is impossible, the fact that We all here in Florida have a problem looks like is not important.

My Name is Juan Vicente Bueno (Igor sound Russian but if you translate Juan to Russian is Ivan I do Hold a major in Russian Literature), and I never had done nothing like this if the situation didn’t call for it.

Straight shooter? In my culture we “said the way it is” but looks like Humans “like to be lied about”. Be honest doesn’t bring you friends.

JuanB (Florida)
Posts: 38

Posted:

Quote:

Posted By DonnaS on 02/21/2009 9:28 AM

Juan,

CCFJ represents the other side of the coin in HOAs and those who are anti Board or HOA. They do have valid concerns but I believe that they are also slanted against most Board structure. I read them often just to keep abreast of what owners are complaining about the most. So your reccomendation of going to CCFJ will be considered for what it is and that is an opinion other than what we stand for here. But Thank You.

All you are getting this wrong. I am not anti BOD. I am against the corrupted ones.

Never had a problem before and never was interested in this problems but since Oct 2007 I was touch but nothing but hell because and illegal BOD.

You all are getting this wrong. I am never against a BOD I was over there I did work in a BOD I did work for the association for a couple of Years until 2001. My term ends and I continue working for my association and helping the BOD.

Now I did have to change my Web to work for the Owners as I can not work with the BOD as no do not have account records since 2007 all accounts disappear, we do not have insurance.

…. And you are saying that I am a bully.

I do not like some aspect of CCFJ and I do not have the same approach of Jan B (somebody try to compare me with him) but I did participate in a HOMEOWNERS' + CONDOMINIUM ASSOCIATION TOWN HALL MEETING and had the opportunity to listen all other owners line up in the middle of the room to talk to State Representative Maria Sachs , State Representative Julio Robaina, State Representative Franklin Sands. All these owners had the same concern “the unlimited Power of the BOD”, the unability of DBPR to enforce the Law alredy created and the need for changes.

DonnaS (Tennessee)
Posts: 5,671

Posted:

OKAY JUAN!!!

NUMBER ONE--THIS IS A THREAD ABOUT PROXIES.

NUMBER TWO--THIS IS GETTING OLD, YOUR COMPLAINING ABOUT INJUSTICES AGAINST YOU OR YOUR ASSOCIATION OR WHATEVER.

SO, STICK TO THE SUBJECT OF THE THREAD AND QUIT THE NAME CALLING---"Sick Lady, Missy," etc

JohnK3 (Pennsylvania)
Posts: 967

Posted:

INT. THE CLUBHOUSE - NIGHT

15 MEMBERS (of the 32 of the HOA) are present at this annual meeting. JOHN, the President, announces:

JOHN
And now we'll distribute ballots
for voting for the single vacant
position on the Board.

JOE
I'll need thirteen.

JOHN
Everybody only gets one.

Joe lifts a folder and branishes it toward John.

JOE
I have twelve proxies from absent
members who have appointed me to
cast votes on their behalf.

John looks to the Secretary, MARY, whose shrug says News to me.

JOHN
Well, we'd have to see them.

JOE
what an ignorant statement, John.
Proxies and their votes are private.
The number of the votes is not. ask
al franken.

MARY
Who's Al Franken? Is he the new guy
who just moved into...

JOE
Just give me the thirteen ballots, okay?

MEMBER 1
But if you say...

JOE
Are you hard of hearing? Proxies are
private!

MEMBER 2
Says who?

JOE
Says me, eggroll!

Joe starts drumming his fingers on the table as Mary distributes the ballots. She pauses, then hands Joe only one.

JOE (cont.)
I said thirteen, Missy.

Mary looks to John, who shakes his head No.

DonnaS (Tennessee)
Posts: 5,671

Posted:

John,
Sounds like in your former life, you were a writer for Seinfeld.

Anyhow Folks, the actual Proxy IS NOT SECRET!!! Otherwise, how would the Board/Secretary or Election committee validate who is voting and that they were only voting once. How they or the Proxy Holder votes is SECRET.
This is not rocket science, VOTES ONLY ARE SECRET.

JohnK3 (Pennsylvania)
Posts: 967

Posted:

Quote:

Posted By DonnaS on 02/24/2009 11:16 AM

John,
Sounds like in your former life, you were a writer for Seinfeld.

Anyhow Folks, the actual Proxy IS NOT SECRET!!! Otherwise, how would the Board/Secretary or Election committee validate who is voting and that they were only voting once. How they or the Proxy Holder votes is SECRET.
This is not rocket science, VOTES ONLY ARE SECRET.

Donna,

I wish, but thanks anyway. Though, aside from toiling in the legal profession, I have had one novel published (hardcover USA, paparback Japan). And it was even optioned (the film rights) by 20th Century Fox. But that's a subject for the Regulars' Free For All thread that our sponsors here haven't gotten around to deciding on (yet).

But returning to on-topic -

Yes, only votes are, if called for, secret.

MaryA1 (Arizona)
Posts: 7,043

Posted:

I was prepared to state the same thing as Donna, but got a bit waylayed in reading over some of the opinions stated. John was correct in his scenario by not giving Joe the 13 ballots he requested. If the Sec. cannot see the proxy then she cannot determine if it is valid. George made a good point in stating that a directed proxy may contain specific voting instructions, thus making it private. However, IMO, if the HOA has secret balloting, then that directed proxy could not remain secret as it would have to be validated.

But, in answer to Shantell's question. No, the proxy itself, is not private. If some members want to see the proxy's, depending upon your gov. docs. and the laws in your state, you may have to give them access to them. AZ has a statute stating a member has the right to view or obtain copies of the assn's records and copies of proxies used in an election would certainly qualify as "records".

JuanB (Florida)
Posts: 38

Posted:

Quote:

Posted By DonnaS on 02/24/2009 10:22 AM

OKAY JUAN!!!

NUMBER ONE--THIS IS A THREAD ABOUT PROXIES.

NUMBER TWO--THIS IS GETTING OLD, YOUR COMPLAINING ABOUT INJUSTICES AGAINST YOU OR YOUR ASSOCIATION OR WHATEVER.

SO, STICK TO THE SUBJECT OF THE THREAD AND QUIT THE NAME CALLING---"Sick Lady, Missy," etc

Hello Dear DonnaS

LOL Sorry I couldn’t hold it. Why you so upset with me? I already Get that you didn’t like Missy and do not procrastinate yourself calling that over and over, but back to talk about Proxies.

Fact is that Owners do not like Proxies and for reasons that I do not understand BOD members loved.

Fact is that Owners are requesting to State representative Julio Robaina to do something to eliminate Proxies if is possible and replaced with Owners Ballots.

Guess I did thought that this information was welcome in this forum.

That Is all I have to say about Proxies.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Juan,

What you say is being proposed in FL has already been done in AZ. Several years ago the State outlawed proxies for HOA elections. We now must use mail-in ballots for a meeting of the members. The reason for this legislation is really twofold:

1) it eliminates misuse of proxies, especially by BODs who only allow proxies to be given to a board member, and
2) it makes it easier to obtain a quorum for a member's meeting (people are more apt to mail in a ballot than attend a meeting and that mailed-in ballot also counts toward the quorum)

My own assn amended our bylaws several years b/4 the state law was passed. The reason was because it was getting more and more difficult to obtain a quorum for the annual meeting. We've not had a problem since!!

JuanB (Florida)
Posts: 38

Posted:

Personally I do not know what is going on with the proxies but looks like the law doesn’t looks the same for HOAs CAMs and all other kind of associations.

Reason I recommended research

KevinK7 (Florida)
Posts: 1,343

Posted:

Quote:

Posted By MaryA1 on 02/24/2009 12:46 PM
Juan,

What you say is being proposed in FL has already been done in AZ. Several years ago the State outlawed proxies for HOA elections. We now must use mail-in ballots for a meeting of the members. The reason for this legislation is really twofold:

1) it eliminates misuse of proxies, especially by BODs who only allow proxies to be given to a board member, and
2) it makes it easier to obtain a quorum for a member's meeting (people are more apt to mail in a ballot than attend a meeting and that mailed-in ballot also counts toward the quorum)

My own assn amended our bylaws several years b/4 the state law was passed. The reason was because it was getting more and more difficult to obtain a quorum for the annual meeting. We've not had a problem since!!

Out of curiosity, has the change in AZ been positively received? Personally, I think it sounds like a swell idea, but what is the general consensus (of both BOD members and homeowners)?

MaryA1 (Arizona)
Posts: 7,043

Posted:

Kevin,

There is one aspect of the law that might pose a problem for some assns and that is the fact that nominations from the floor can no longer be made. The reason is because the law states that the absentee ballot must set forth each proposed action, meaning the names of ALL candidates must appear on the ballot. I know this might pose a problem for assn's that have relied on nominations from the floor to produce a full slate of candidates. This was the case in my former assn. But, there hasn't been any discussion on any of the HOA groups I belong to indicating the law has posed a problem and there has been no proposed legislation to amend this law.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Mary and All,

Does the factor that Florida has so many hundreds of thousands of absentee owners (seasonals as we call them), have anything to do with the use of proxies? And the members that are well over 80 who may not be able to attend meetings but still want to voice an opinion? Just another side to the proxy issue. Florida does not have absentee ballots addressed in the HOA Statutes but does in the Not For Profit Corp Statutes which we all file under.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Mary,
On another post I posed the question about how "Lawful" association documents are? Scant respose but the answer to this is certainly not definitive and may vary from state to state. I suspect we may not be as "lawful" as we like to think we are. Your post here begs the question(with reference to my "lawful" post); can the documents be amemded to exclude the requirement for proxy voting as described by the documents of associations? Initial response would be: "No, you can't do that, it is a state law....period." But posting here seem to indicate, you can change your documents lawfully to conform to some specific desire of an individual associations. Now, if the definitive answer is "No", then the question could be; can you "modify" this proxy requirement?

It is true that in some states or all states, I don't know, but, the non-profit corporation law seems to command "meeting" requirements more than state statutes on associations, because some states do not have association laws as such. If you read HOA expert Lawyers, they take wide lattitude in how to run meetings and always preface their suggestions with "if you documents allow". And I doubt few associations have been around long that still have un-amended documents.

I am sure all can see where this is going, but since you responded to my "lawful" post, how about a little discussion on that thread about this proxie requirements and also the subject of removing a "bad" board member? All of this is "mystified" with the universal clause in our documents about the "Board can take any action it deems necessary if they determine it is in the associations best interests", or words to that effect. Granted specific condition are supposed to exist, but, at least in some documents I have seen this provision in there, and probably rightly so, in an emergency when swift action is necessary. Floods and Hurricaine come to mind.
Also do not negate this fact that many many associations are neighborhoods with majority absentee owners.
Sorry, didn't mean to write so much.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Donna,
I swear I did not read your post until after I had posted mine.
We must be Blood.
Please go to my thread on "lawful" and expand your thoughts.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Robert,

With regard to your question, this is how the AZ proxie statute reads: "NOTWITHSTANDING ANY PROVISION IN THE COMMUNITY DOCUMENTS, (emphasis mine) after terminatin of the period of declarant control, votes allocated to a unit may not be cast pursuant to a proxy." This means that regardless of what your community docs say, the statute prevails. It would do no good to amend the bylaws pertaining to proxies, the State law rules.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Donna,

I can't see how the rate of absentee owners would factor into the prohibition of proxies. If you give your proxy to someone you must sign it which would require mailing it to that person if you are out-of-state. What's the difference in mailing a proxy or mailing an absentee ballot? I can see none. Regarding AZ's law, only what is stated on the ballot can be voted on, which means there will be no additional actions taken at the meeting, thus negating the need for proxies (often given so the person with the proxy can also vote for you on any other issue that might come up). With absentee ballots, each member can vote for themselves w/o worrying about to whom they should give their proxy if they are unable to attend the meeting. Frankly, I think it's a much better procedure and, because the absentee ballot also courts toward the quorum, it can effectively "kill two birds with one stone"!

DonnaS (Tennessee)
Posts: 5,671

Posted:

Mary,
I agree. BTW, Proxies also count towards a quorum count. I am not pushing towards keeping proxies nor do I want to do away with them. I guess that non committed is who I am. I have seen them used wisely and abused. The State needs to make a move on them because many associations think that they solve non involvement issues.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Mary,
Then, if I understand correctly, your documents have been amended by the state to prohibit proxies, because the state can amend the documents or just those provisions? I could be way of course here, and certainly the amendment to your doc seems legit, but doesn't this above you quoted address the situation when the declarant turns over the association to the HOA? Maybe I am splitting hairs about this, but it would appear that this provision applies only to those associations under declarant control. If not, what was the reason for referencing the declarant at all? Doesn't this mean also, you would have to go back to the period your association assumed control from the declarant? How could you be retroactive in this case?

The other part of this is "Notwithstanding, etc, etc." Suppose that was not in there and no reference was made in the documents? I would assume your documents did not exclude "Proxies" until the amendment was made. I suspect there are a lot of Proxys being used that really have no state requirements about the application of "proxys", let alone the use of different kinds of proxys, such as assigned, etc.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Quote:

Posted By RobertR1 on 02/25/2009 12:59 PM
Mary,
Then, if I understand correctly, your documents have been amended by the state to prohibit proxies, because the state can amend the documents or just those provisions? I could be way of course here, and certainly the amendment to your doc seems legit, but doesn't this above you quoted address the situation when the declarant turns over the association to the HOA? Maybe I am splitting hairs about this, but it would appear that this provision applies only to those associations under declarant control. If not, what was the reason for referencing the declarant at all? Doesn't this mean also, you would have to go back to the period your association assumed control from the declarant? How could you be retroactive in this case?

The other part of this is "Notwithstanding, etc, etc." Suppose that was not in there and no reference was made in the documents? I would assume your documents did not exclude "Proxies" until the amendment was made. I suspect there are a lot of Proxys being used that really have no state requirements about the application of "proxys", let alone the use of different kinds of proxys, such as assigned, etc.

Robert,

First of all, our documents have not been amended; we just have to abide by the state law. The law is written so that while the assn is under declarant control they can use proxies; the law is only effective after the period of declarant control. The developers make certain they get that put into much of the HOA legislation that is passed. They don't want anything to upset their apple cart!

You're right, as is the case with most bylaws, proxies are allowed in our bylaws. But, of course, state law takes precedence over what our bylaws say. I'm sure there are some assns in AZ where the BOD is not aware of this new law and continue to use proxies. Since many assn's are self managed and do not have the expertise of a property manager, it's understandable the BOD may not be aware of the state laws. Also, when there is no state agency to oversee HOAs, many things fall through the cracks.

DeirdreN (Florida)
Posts: 7

Posted:

Quote:

Posted By JohnK3 on 02/20/2009 11:27 AM
So someone could pull a Joe McCarthy - you know, shake a handful of papers, say I've got the names, then not reveal them?

If somebody wants to see proxies, they should be shown them. The alternative would be sorta silly, eh?

Florida statute 718.111(12)(12) states "Ballots, sign-in sheets, voting proxies, and all other paper relating to voting by unit owners, which shall be maintained for a period of 1 year from the date of the election, vote, or meeting to which the document relates, notwithstanding paragraph (b)"....must be part of the official records the condo association holds. Therefore, any owner is entitled to look at these documents. Paragraph (b), by the way, merely states that some records must be held for seven years, not one, so if an association had lots of file space they could hang onto election records longer than the required one year.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

DeirdreN,
You may be a "lurker" here but you are certainly not lacking in presenting your position in a concise manner and backing it up.

No doubt you have had some interest of training or something regards the HOA situation. On another recent post (see discussion page) George Williams has just written a wonderful synopsis of his take on HOAs in general. Can't remember the Topic, but George has wide knowledge on the legislative side of HOA laws by the states.
Give it a read and post your comments.
Personally, I find his conclusions wise and I intend to use it as some kind of authoritative resource. There is so much difficulty it establishing a reference that makes thing clearer, certainly all the CC&r's lead to confusion or some sort by some people.

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