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January 27, 2006
Withholding Proxies Given By Owners - Is it a Good Idea?
If there is a membership meeting in an HOA and there is an important voting measure at stake, sometimes owners collect proxies and withhold them (fail to check them in at the meeting) so that there will not be a quorum and the meeting has to be adjourned. A board might send everyone home. If there is a quorum and a vote is taken and the measure is voted up or down, that might effectively resolve matters once and for all. If there is no quorum, 5% of owner(s) might raise the issue again, by submitting a legally proper petition for another meeting on the same subject.
In any case, if there is a legal vote it supports rejecting future votes on the same issue (although the facts would have to be examined in any particular situation to determine the risks and benefits of denying a legally valid petition). If the association members have already been informed as to an issue, and those who wanted had an opportunity to have their vote counted, a board might not need to honor a duplicative petition on the same issue (consult with your own legal counsel if the situation arises).
Thus, any owner that holds proxies back and does not turn them in may be promoting furtherance of a particular issue, rather than resolution or an end to it.
But there is more to be said. If someone collects proxies and gives the owner who signs the proxy an expectation that that person will carry forward a certain message, the person who assigned the proxy expecting it to be turned in and a vote lodged on their behalf will not have their expectation met.
The press and legislators in this state complain about boards left and right. However, the games that owners play can be just as frustrating and unfair as something a board does. It really places a burden on an association when an owner holding several proxies (I have seen this happen with someone holding as many as 100 or more proxies) withholds them until the last person has signed in for a meeting. If you are a board member or a person that checks in owners at a meeting, you know how this kind of "tactic" can disrupt a meeting and delay important matters, such as determining if a quorum is even present.
I do not recommend these kinds of games, and under the new elections law, a board might be able to enforce a firm cutoff time for return of ballots or proxies which would, hopefully, discourage this kind of practice. Consult with your own attorney of course. These comments are not to be construed as legal advice, just food for thought.
Posted by Beth Grimm at January 27, 2006 10:59 PM