The Problem with Proxies

Association election contests can be controversial, and proxies all too often add to the controversy.

What is a proxy?

A proxy is a document by which one association member authorizes another to vote for them. Unless banned by governing documents, proxies are allowed in non-profit mutual benefit corporations under Corporations Code 7613 and Civil Code 5130.

The three types of proxies

The three varieties of proxy are the directed proxy, the general proxy and the quorum-only proxy. Directed proxies instruct the proxy holder how to vote. By a general proxy, the member gives their voting rights to another person who may vote as they see fit. The proxy for quorum purposes only is self-explanatory, in that the member does not wish to vote or to give their vote to someone else but desires to help the association attain quorum.

What makes a proxy “legal”?

For general or quorum-only proxies, the requirements are very simple. Per Corporations Code Sections 178 and 7613, a proxy need only express that a member authorizes someone else to vote for them. Section 178 requires proxies be “signed” by the maker, although the definition of “signed” is much broader than simply a signature. By implication, the statute requires proxies to be dated. A proxy could be on the back of a parking receipt, or a napkin. Associations insisting upon an “official” proxy form are mistaken, and often spark unnecessary disputes with members who submit “unofficial” proxies which still meet the very minimal legal requirements.

Civil Code 5130(a)(1) adds another simple limitation – a proxy may only be given by a member to another member (not a relative, or tenant, for example).

Some special issues, such as recall or ratifying contracts with a director, must be mentioned on the general proxy for it to be usable on those issues.

Special requirements for directed proxies

Directed proxies are not useful because of the extra steps required by law. Under Civil Code 5130(c), directed proxies must have a detachable sheet telling the proxyholder how to vote. The proxyholder keeps that sheet, and then casts a secret ballot. However, since the ballots are secret, there is no way to confirm that the proxyholder voted the ballot as instructed.

Proxy termination date

Proxies without a stated expiration date automatically expire in eleven months. A proxy cannot state an expiration date longer than three years.

Proxies are revocable

Proxies may be revoked by the member actually voting a ballot. They may also be revoked by issuing a later dated proxy or by writing a revocation.

Problems with general proxies

There is no reliable way for Inspectors of Election to confirm the date or validity of a member’s signature. Some members play games with proxies, leaving dates blank, or collecting them under questionable circumstances. Proxy issues are one of the most common disputes in HOA elections.

Proxies are unhelpful

The problems with general proxies far outweigh any real benefit. Since members have at least 30 days to cast their ballots in an “absentee” fashion, there is no need to give one’s right to vote to another. Consider amending your association’s bylaws to allow proxies only for the purpose of establishing quorum. Your association will have simpler elections – and your Inspectors of Election (and also lawyer and manager) will thank you.

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®.