Undisclosed Proxies?

At our last annual meeting, the board president paid for someone to circulate and collect proxies in his name. When he arrived at the meeting, he then voted all of them, but said he did not have to reveal how many proxies he had to the membership at large.

I'm wondering if this is actually true. I understand that in government voting the idea of a secret ballot is very important, but there are also no proxies in government voting. Our bylaws do not specify secret ballot, merely that they do vote, and that written proxies are allowed. Additional notes on proxies say merely that they are governed by the general provisions of law. This is in the state of New Mexico.

The question I have is whether or not he actually has a right to privacy. For that matter, is there any right of the other homeowners to have this information. I've tried googling for information on New Mexico law, but apparently I don't know the correct search terms. If anyone knows this information, or where I could look it up I'd really appreciate your input.

Thanks!

JJ,

We've discussed this before here. I believe the general consensus - barring any particular language in the HOA docs - is that valid proxies should be revealed (and verified) if requested by a Member, though actual votes can be kept confidential by the official vote counter. In your case you know the alleged votes already, but nonetheless should be able to see the proxies supposedly backing those votes.

We have an attendance/verification process that's overseen by our management company. The representative of the MC assured us that we had a valid quorum, and the total number of attendance is available.

However, the MC and president maintained that the actual number of proxies in the president's name was not public information.

I know that the President paid for two reasons:
1) the President admitted it at the meeting
2) the people who were paid admitted it (after they called the MC to confirm - because the MC representative was the one who contacted them on the President's behalf and actually provided them with maps and names of owners)

And as one of the people at the meeting was saying she didn't understand what the fuss was because 'He can't vote those proxies, they're just for quorum' and I've spoken to others who didn't understand about voted proxies... I'm assuming they just signed what they were presented with.

(To add to the fun, our HOA has in the past paid for people to collect board proxies which are basically abstained, i.e. they really are only for quorum purposes. These are the same individuals who were hired by the president, but he hired them for himself two weeks before they were scheduled to collect the 'unvoted' proxies. That's just an aside though, I'm wondering if there really is some right of privacy when it comes to number of proxies as he and the MC representative claim)

We have 750 units - but all of the proxy verification is done by the one person from the MC. I certainly agree that a panel would be more appropriate. It's hard to handle when the MC rep assures everyone that they're just doing this to keep things 'fair' and 'legal'. I'm fairly sure that New Mexico does not have specific HOA laws, and I'm having a hard time finding the laws governing corporations in this respect.

We have three volunteers from the attendees count the votes, but despite the fact that the ballots themselves do not say who voted them, these volunteers were instructed by the MC rep that they could not reveal how many votes each candidate received.

If anyone has any links or suggestions on where to find more information on New Mexico laws for non-profit or not-for-profit corporations, I'd really appreciate some direction.

Just Google: New Mexico non profit corporation act

Thanks Susan, I found it.

Although I'm still not sure on legalities now. The New Mexico Nonprofit Corporation Act does not specify either a guarantee of privacy, or a right to any information. Nor do our Bylaws. I suppose by that token, the BoD can specify at their discretion whether or not to reveal the information?

Looked again...

Nothing about what records had to be kept under the New Mexico Nonprofit Act, or about means of voting other than that proxies were allowed if permitted by our articles of incorporation.

Our bylaws specify that votes for Director position are to be by secret ballot, and it also says "The Secretary shall keep, or cause to be kept, a book of minutes at the principal office of the Corporation or such other place as the Board of Directors may order, of all meetings of Directors and members, with the time and place of holding, whether regular or special, and if special, how authorized, the notice thereof given, the names of those present at Directors' meetings, the number of votes present or represented at Directors' meetings and the proceedings thereof." (The articles of incorporation say less, but along the same lines). It also helpfully states "The manner of execution, revocation, and use of proxies shall be governed by the general provisions of law." However, so far the only laws I have found have simply stated that they are acceptable for use in nonprofit corporations.

Which sounds as though the number of votes is only required to be recorded in the minutes of Director's meetings, and not the general assembly. And that's only those present, not necessary what the vote count for issues are.

It does sound as though given this lack of direction, the board of directors could vote to put that information in the minutes, but it's looking less and less like there's any actual requirement that they do so.

Generally speaking . . . At the Annual Meeting where the election of directors takes place, the results should be announced.

Mr. Jones 25 votes
Ms.Smith 18 votes
Mr.White 15 votes.

The new board members are Mr. Jones and Ms. Smith.

The time for the objection (point of order) should have been at the election. The proxies should have been qualified BEFORE the election and cast at the call for the vote. Proxies and live votes are not reported differently. The secretary should, however, keep the votes until the board tells her to destroy them.

JJ just because this looks fishy doesn't necessarily mean anything improper happened. I would write a polite letter to the BOD asking them to clarify and establish a voting / proxy policy to eliminate the appearance of impropriety that now exists.

If they decline there is nothing stopping you or your neighbors from gathering your own proxies for the next election. You can even gather them from members who have already given theirs to the president's paid helpers. If I have a proxy from Michele dated 08/10/09 and you have one from her dated 08/14/09 then my proxy is invalid and yours is valid. Also understand that there are different types of proxies. A general proxy gives the proxy holder carte blanch to vote as they see fit, while a directed proxy requires the proxy holder to vote a specific way. You can also specify that your proxy only be used to establish quorum but not be used to vote.