Planning and Executing Successful Elections
Q: We are a self managed association and election time is coming up. It seems that something gets fouled up technically each year...especially with the use of proxies. What tips can you give us to have a smooth and successful election process? Who can hold a proxy for a member? Does it have to be a board member or an officer of the association? What can we do if we don't have a quorum of members? Can you count the proxies toward a quorum?
A: These are important questions and some of them are likely on the minds of other homeowners anticipating elections.
First, to have an election you need candidates. Often that is a problem for associations and one reason that some are putting in limits on the number of units that can be rented. Generally absentee owners are not particularly active in the association's affairs. You should start "recruiting" volunteers for board positions as much as six months in advance of elections. You need to let your members know that the board is looking for interested homeowners to serve on the Board or as committee members. Ask members who may be interested to come to a board meeting and, after the meeting, familiarize them with board participation requirements.
Second, appoint a nominating committee to seek out qualified candidates and meet with them about the needs and expectations of board service. The nominating committee is tasked with coming up with at least the number of candidates necessary to full the seats being vacated....hopefully more. The names selected by the nominating committee are presented to the Board as a slate of possible board members to be placed on the ballot. No one intending to run for office should serve on the nominating committee.
Third, make sure the owners are informed about the candidates both by a written description of them mailed out well in advance of the election meeting and by giving them the opportunity to speak to the members at the meeting at which the election is held. The nominating committee or President should let all candidates know that they will be expected to say something about their qualifications and reason for running for the board.
Fourth, one of the most important aspects of the election process is to have neutral persons administering the election. Many documents call for the appointment of "election inspectors", but even where they don't, it is the prerogative of the president to do so. These persons should be members of the association who have no relationships with the candidates and no other stake in the election. The goal is to have impartiality and balance in the group of inspectors. Generally, four inspectors should be sufficient. The purpose of the inspectors is to validate the proxies, count the ballots, and declare the successful candidates.
Fifth, count the votes promptly and in view of the members present. It can be done in a room off to the side as long as the door is open. While this may be viewed as excessive openness, it simply eliminates any accusations of impropriety. However, members must respect the fact that the inspectors need some peace and quiet to accomplish their counting task which can take some time.
You asked several questions about proxies. Proxies are an eternal source of difficulty and confusion. First of all, unless the bylaws say otherwise, you may give your proxy to anyone, even a non-member; although if you are giving an "uninstructed proxy", where the holder can vote as he or she sees fit, you may want to give it to another owner who generally views the association business as you do and knows the candidates. Many associations use instructed proxies for elections in which case the candidates are listed on the proxy and the grantor of the proxy checks off the names from whom he desires his proxy to vote. This is sort of like an absentee ballot, but bear in mind that absentee ballots are not permitted, unless the bylaws so state, and they rarely do because personal active attendance at important association events like elections is critical to the successful operation of the association. In condominiums, the statutory law (as well as bylaws) prescribes all the necessary ingredients for proxies and failure to adhere to the requirements will result in the proxy not being usable. Proxies are required to be presented prior to the opening of the meeting (sometimes even earlier) and should be examined by the officers. Those which do not comply with all the requirements must be rejected. Proxies absolutely do count toward a quorum and in many associations are the only way that quorum can be achieved. Due to the importance of proxies we urge you to have your proxies prepared by legal counsel familiar with association operations so as to assure their proper preparation and validity.
Finally, if you do not have a quorum, look at your bylaws for guidance. Some will allow a continuation for a week or two and then a reconvening with a lower quorum requirement. If you do not have such a provision, then you must call another meeting and send the directors out to obtain the necessary proxies to insure you have a quorum at the next meeting.
We hope these tips will lead to a successful and "no hitches" election this year.
I do not understand the difference between an instructed proxy and an absentee ballot. Could you please give specific info an this issue. Thanks.
Response: Thanks for you inquiry. There is a vast technical difference and a nearly inexplicable practical difference between these two. The Condominium Act has a provision about proxies but does not mention absentee ballots. There are standards for proxies before they are acceptable. Many association documents also have provisions for proxies, but most do not mention absentee ballots.
Instructed proxies are those which allow an owner to direct how his proxy holder shall vote on an issue coming before the membership or for certain candidates for director positions in an election. Condominiums and, to some extent, homeowners associations, are creatures of statute and are guided by their recorded documents and the state statutes. If neither of these sources of power and rules allows for absentee ballots then they may not be used. It is something that has to be authorized.
On the other hand, the use of proxies is authorized by statute and most documents. You could amend your declaration or bylaws to allow for absentee ballots, but you should spell out under what circumstances they may be used and that only forms provided by the association can be used.