Reader Questions - Proxies

Mr. Richardson,

I have been under the impression that a change to the laws in California no longer allowed proxies for elections. We almost never get a quorum on the first try and therefore have to waste the homeowner’s money having a second annual meeting to meet the reduced quorum numbers. Yet, a previous article by you sounds like proxies are allowed for quorum purposes. Can you clarify this? Thanks,

F.V., San Clemente

Dear F.V.,

Proxies are permitted by Civil Code 5130 if the governing documents allow them. I find that proxies for purposes of achieving quorum are helpful. However, general proxies and directed proxies are fraught with problems and unnecessary, given the “absentee ballot” type voting used in California. Furthermore, there is little guidance in the Corporations Code regarding proxies, and it is hard to prove abuse or even fraud.

I routinely suggest my clients amend their governing documents to eliminate proxies except solely for the purpose of achieving quorum.

Appreciate your question,
Kelly

Dear Kelly,

We have candidates who jointly created new proxies and pre-marked the votes for themselves and then mailed them out to the members asking them to return these proxies for their votes. Is it legal for them to do this?

Thank you,

M.M., Chula Vista

Dear M.M.,

What you are describing is called a “directed proxy,” in which the holder is instructed how to cast the ballot for the proxy giver. Directed proxies are easy to prepare improperly – per Civil Code 5130(c), the instructions regarding voting must be on a separate page, which is then detached from the proxy. The proxy page is given to the Inspector of Elections, and proxy holder then casts a secret ballot. Directed proxies are often prepared incorrectly and are problematic, since there is no way to guarantee that the proxy holder casts the ballot in the way they are instructed. But, if the proxy consists of two pages, complying with 5130(c), it is probably ok.

Thanks for your question,
Kelly

Dear Kelly,

We are having a contentious election in our community. 

Our association’s paid ombudsman, who is also a homeowner, has organized a team of owners/friends and distributed proxies throughout our community to be collected and delivered back to him once signed. The proxy holder’s name is left blank, so when returned to him he can vote for the present board that supports his position. He claims he is collecting these for quorum purposes.

N.M., San Clemente

Dear N.M.,

Anyone paid by the association, whether a homeowner or not, should not take any position as to the outcome of an association election. It is common for a board to try to achieve quorum by soliciting proxies for “quorum-only” purposes. Some boards will solicit general proxies, in which the board can vote for whatever position the board (in open session) decides to take on the election. If the proxies are solely for quorum, then the proxy will say that. If the proxies allow the holder to vote, then they should be given to the board for voting. Anyone signing a proxy with the holder’s name blank is making a blank check, because it can be given to anyone in the HOA, including someone the homeowner would not want to cast their vote for them.

Best,
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®.