Illegal General Proxy Forms?

Hello,

The Bylaws of the Association state that in an election of Directors, each Member can cast the election votes either (1) by ballot OR (2) by proxy (one OR the other, NOT both).

However, the Board incorrectly instructed each Member to cast the election votes BOTH (1) by signed written ballot form AND (2) by signed general proxy form, claiming that the purpose of the signed general proxy form was to establish a quorum at the Members meeting, implying that this was necessary to legitimize the election of Directors.

When casting election votes by signed written ballot form, the Member casts the election votes directly in the manner stated on the signed written ballot form.

When casting election votes by signed general proxy, the Member signs away the election votes to another person (a proxy), who then casts the election votes in whatever manner the proxy (the person) chooses.

Logically, the Member can vote one way or the other, not both ways, which is consistent with the official instructions in the Bylaws that each Member must cast the election votes either (1) by ballot OR (2) by proxy (one OR the other, NOT both).

However, as already stated, the Board incorrectly instructed each Member to cast the election votes BOTH (1) by signed written ballot form AND (2) by signed general proxy form. Thus, the signed general proxy form (in which the Member signs away the election votes to another person) CANCELS the signed written ballot form (in which the Member casts the election votes directly).

Question. Since the signed general proxy form was obtained from the Members through incorrect instructions that violated the offical instructions in the Bylaws, if the signed general proxy that proxy hold has received from each Member ILLEGAL?

Jim

Let me try that again (I really need an edit function).

Question. Since the signed general proxy form was obtained from the Members through incorrect instructions that violated the offical instructions in the Bylaws, IS the signed general proxy FORM that THE proxy HOLDER has received from each Member ILLEGAL?

Jim

Hi RogerB,

It's a general proxy form. It specifically states on the proxy form that it gives the proxy holder complete power of attorney as a substitute for the Member to do whatever the Member could do if the Member were present in person. It was the accompanying letter that stated that its purpose was to establish a quorum. But the languge on the signed general proxy form is what counts, not what's in the letter. So the signed general proxy form gives the proxy holder complete power to cast the Member's election votes in whatever manner the proxy holder wishes, which of course cancels the Member's signed written ballot form, because the election votes no longer belong to the Member to cast by written ballot, but they have been signed away to the proxy holder. The Board's instructions to the Member to vote BOTH (1) by ballot AND (2) by proxy (general proxy) are not only self contradicting but also a violation of the Bylaws instructions, which state that the Member is to vote either (1) by ballot OR (2) by proxy (one OR the other, NOT both). Since the Board's incorrect instructions, which resulted in this cancelling of the signed written ballot, violate the Bylaws official instructions, does this make the signed general proxy form illegal?

Jim

Jim,

How does your HOA describe this "General Proxy" use? The Florida Statutes use only one type of Proxy and they are considered "Limited", in that they may be used only for the meeting which they are assigned for. They expire after 90 day and can only be used for the purpose stated on the proxy.

This (below)is an example of a limited (or directed) proxy form.

http://www.mymeadows.net/component/option,com_docman/task,doc_view/gid,140/

Jim

I already paraphrased it in my message dated 04/08/10, 07:10pm. It is not online so that I can direct you do it.

I linked the Virginia limited proxy to contrast it to the general proxy that I paraphrased.

My point is that the official governing document instructions for an election specifically state that there is no quorum requirement for an election (or for the meeting at which it occurs).

My point is also that the official governing document instructions for an election specifically state to vote either by ballot or by proxy (not both).

Also, common sense tells us to vote either by ballot or by proxy (not both).

However, this board instructed the members to vote both by signed written ballot form and by signed general proxy form, and it incorrectly implied in its instructions that this was necessary in order for the signed written ballot form to be of any use, because it said (incorrectly) that the members meeting required a quorum, and it implied (incorrectly) that without the signed general proxy form, there would be no quorum, and therefore no valid election, when according to the Bylaws, neither the meeting nor the election requires a quorum.

Its instructions to sign the written ballot form also incorrectly imply that the signed general proxy form would not invalidate the signed written ballot form and would not be used for voting.

However, the truth is that the moment that the signed general proxy form is certified is the moment that the correlating signed written ballot form is invalidated (canceled) and the proxy holder has to do the voting instead of the member. And that proxy holder does not have to follow the signed written ballot form.

Since the board's instructions to sign the general proxy form violate the Bylaws by claiming a quorum requirement that does not actually exist in the Bylaws as the motivation for signing the general proxy form, and since they violate the Bylaws by instructing the members to vote both by ballot and by general proxy, and since they violate the signed written ballot form itself by transferring the voting rights from the member to the proxy holder, is the signed general proxy form illegal?

That's my question.

Jim

There is no previously submitted ballot. The Board instructed the members to vote both by signed written ballot form AND by signed general proxy form AT THE SAME TIME, claiming that the signed general proxy was required for a quorum so that the election would be valid and implying that the signed written ballot form would be used for voting and that the signed general proxy form would be used only for a quorum, when in fact there is no quorum requirement either for the election or for the meeting at which the election is to be held (as specifically stated in the Bylaws) and the members are supposed to vote either by ballot OR by proxy (as specifically stated in the Bylaws) and the signed written proxy form will cancel the signed written ballot form and require the proxy holder to do the voting instead of the member the moment that the signed general proxy form is certified.

If the signed general proxy form is legal, regardless of the deceptive and invalid (contrary to the Bylaws) way it was obtained, and if the proxy holder (the chairman of the board) votes contrary to what is stated on the members' signed written ballot form, then the election will have been hijacked from the members.

Do you think that this would be worthy of complaint?

Jim while your By-Laws may not have a quorum requirement FL 720.306 does:
720.306 Meetings of members; voting and election procedures; amendments.--

(1) QUORUM; AMENDMENTS.--

(a) Unless a lower number is provided in the bylaws, the percentage of voting interests required to constitute a quorum at a meeting of the members shall be 30 percent of the total voting interests. Unless otherwise provided in this chapter or in the articles of incorporation or bylaws, decisions that require a vote of the members must be made by the concurrence of at least a majority of the voting interests present, in person or by proxy, at a meeting at which a quorum has been attained.

So since your By-Laws are silent on the matter your quorum requirement is 30%

(8) PROXY VOTING.--The members have the right, unless otherwise provided in this subsection or in the governing documents, to vote in person or by proxy. To be valid, a proxy must be dated, must state the date, time, and place of the meeting for which it was given, and must be signed by the authorized person who executed the proxy. A proxy is effective only for the specific meeting for which it was originally given, as the meeting may lawfully be adjourned and reconvened from time to time, and automatically expires 90 days after the date of the meeting for which it was originally given. A proxy is revocable at any time at the pleasure of the person who executes it. If the proxy form expressly so provides, any proxy holder may appoint, in writing, a substitute to act in his or her place.

Section 5.02b in the Bylaws specifically states that "the election shall be by ballots OR by proxy ... There shall be NO QUORUM REQUIREMENT for election of Directors; however, at least 10% of the eligible voters must cast a ballot OR proxy in order to have a valid election of members of the Board of Directors."

Jim