Reader Questions - Absentee Proxies, Absentee Meetings

Dear Kelly,

We are in the process of assembling an electronic address file. I am interested in your recent comments about obtaining quorum proxies from absentee homeowners. We used to get proxies from homeowners that lasted for three years. Then, in a periodic upheaval in Davis-Stirling, we were told that this is no longer allowed. Now here you are with this forward-looking suggestion concerning the obtaining of proxies from absentee homeowners for annual meeting quorum purposes. Can you give us a citation in the latest and greatest version of Davis-Stirling that allows this? Can we also obtain quorum proxies from resident owners?

P.T., Santa Ana

Dear P.T.,

Contrary to rumor, proxies are still permitted by the Davis-Stirling Act. Civil Code 5130 specifically addresses proxies. Proxies can only be held by another member, so they can be given to a member or the board to vote for the member.

I am not a fan of proxies, except for the purpose of attaining quorum. Proxies are largely unnecessary for absentee voting, since members have 30 days’ notice and written ballots on most votes. Furthermore, misuse of proxies and even fraudulent proxies are a recurring problem for associations, since the Corporations Code places very few formality requirements upon them. I typically suggest associations modify their bylaws to remove proxies except for the purpose of attaining quorum.

Thanks for your question,
Kelly

Dear Kelly,

We are in a 7 unit complex and we 3 who serve on the board live in Orange County. It sometimes takes us an hour and half to get there. Other homeowners are willing to receive HOA updates via email. Since no one else will run for the Board do we still have to hold an election? If the current directors decide not to serve any longer and no one else will step in what happens? However, if we were allowed to just update other owners on HOA business by email we might stay on. Is that permissible under current Civil Codes?

Thank you very much for your help,

M.Z., Pacific Beach

Dear M.Z.,

Don’t give up, there is an alternative. The Open Meeting Act (Civil Code Sections 4900-4950) provides for telephonic participation (see Civil 4925(a)), and the definition of “board meeting” in Civil 4090(b) includes participation by telephone. The board may meet via telephone if there is a physical location announced where members can attend and listen to the meeting. One director or a person designated by the board must be present at the physical location. Section 4925(a) specifically requires the audience must be able to hear the person or persons who are on the telephone.

A few tips about telephone participation in meetings – first, it is an option of the board, which can decide not to offer telephonic participation. Second, if your association is going to allow telephonic participation, do not use an ordinary cell phone as a “speakerphone” because your members won’t be able to hear what is being said. Normal desktop phones with “speaker” functions also don’t work very well for meetings where multiple people may be listening or speaking. Consider purchasing a device which is intended to be used as a speakerphone, and you will have much less frustration in your boardroom.

Thanks, and hope this saves you some driving!
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.