The answer may depend entirely (or not at all) on the association’s governing documents. If, for example, the Bylaws prescribes the process for use, collection and counting of proxies, then that answers the question. If the governing documents are silent, then the process is up to the current Board (since PA law permits proxy voting). If there is no current process, I would suggest that proxies should be returned to the management agent (if there is one) or the Secretary; they could even go to counsel if there is a worry about the Secretary tampering with them. Of course, if there is that worry, then the problems run pretty deep! The Secretary should log each one when it arrives and keep all originals, bringing them to the meeting in case there are any questions. It might also be a good idea to retain the proxies (either in hard copy or electronically) until the running of any deadline for action (including legal) on or about them or action taken as a result of the proxies.
Sara A. Austin
Austin Law Firm LLC
226 E. Market St.
York, PA 17403
I would first want to review the governing documents to see what they say about proxy voting, but since the below question has been raised, my guess is that the questioner has already reviewed all potentially applicable provisions and there is nothing in them that precisely answers the question. In typical HOA bylaws and/or covenants, proxy votes must be given from one member to another member, and the member receiving his or her fellow member’s proxy can vote his/her own vote plus an additional vote for each proxy he/she holds. Using that procedure, a member with proxies should simply bring the original signed proxy with him/her to the election meeting. Typically an owner with proxy votes for a meeting at which voting is to occur will be required to notify the secretary of the association, at the meeting location but before the meeting starts, that he/she is holding proxies, how many, and which members the proxies are from. If your governing documents allow for voting on issues or board elections without physical attendance at the meeting, such as by mailing in a ballot, then giving a proxy to a fellow member is not necessary to exercise one’s vote in that manner. All of those mail-in ballots should be mailed to the specified address or P.O. Box designated for that purpose, which is typically the Association’s business address, and collected and kept together in one secure location as they arrive in the mail (or are hand-delivered in person). A deadline should be specified by which ballots received by mail or hand-delivery must be received. It may be something along the lines of 10 days before the election meeting.
In terms of who should be in charge of collecting and holding any proxies or ballots that are mailed in or hand-delivered in person in advance of the election meeting, typically it is the property manager who does this for professionally managed associations. In self-managed associations, this task would typically be done by whoever maintains the books and records of the association, which is usually either the secretary or in some cases one of the other board officers by agreed designation, perhaps the president or vice president. If there is a concern about malfeasance or mishandling of ballots or proxies that are submitted in advance (either negligent or intentional), and/or if in self-managed associations for any reason it is felt that there is a need for some neutral third party other than the current secretary or other designated board officer to collect and securely keep the ballots, then a neutral third party agent may be designated by the board to serve as collector and trustee of the ballots/proxies received in advance of the election meeting. If this is done, then the mailing address for ballots and proxies submitted in advance should be a mailing address where only the agent can receive and retrieve the mail, and the members must be notified in advance that any ballots or proxies submitted in advance of the election must only be mailed (or hand-delivered to) the agent at the specified address, and that any ballots/proxies sent elsewhere, including to the Association, will not be valid and will not be counted. (Of course a proxy can still be given to a member who will be physically attending the meeting, as stated above.) Upon the expiration of the deadline for submitting ballots or proxies by mail, the agent would then deliver all the ballots/proxies he/she has received by mail or hand-delivery. This delivery by the agent can be scheduled at a specific time and place where the board and each candidate or their designated representative can be present while the ballots/proxies collected by the agent are opened and counted.
In implementing procedures such as these, the entire process should be set forth in writing and passed by resolution at a meeting of the board, and precise explanation of all elements of the procedure should be made a part of the written minutes of the board meeting at which they are enacted. Great care should be taken to ensure that no voting procedures are undertaken which conflict with the governing documents of the association or the laws of the state, such as the Nonprofit Corporations Act. In particular all applicable notice provisions should be fully understood and strictly complied with.
Sean A. O’Connor
Finkel Law Firm LLC
4000 Faber Place Drive, Suite 450
North Charleston, South Carolina 29405
Direct Dial 843.576.6304
HOA proxies are controlled by IC 32-25.5-3-7 (below). As a general rule the proxies must be delivered to the Secretary of the Board prior to the commencement of the meeting for which they apply. If the HOA has a management company, they would be an appropriate person to collect the proxies. They would then hold them as a corporate record. If there is no management company, then the Secretary would be the appropriate person to collect the proxies and they would be placed with the corporate records that are then turned over to the new Board.
IC 32-25.5-3-10Member meeting proxies; requirements; retention; methods of submission
Sec. 10. (a) This section applies to a proxy given by a member of a homeowners association.
(b) A proxy that does not comply with this subsection is void. A proxy must include all the following:
(1) The name and address of the member giving the proxy.
(2) The name of the individual empowered to exercise the member’s proxy.
(3) The date on which the proxy is given.
(4) The date of the meeting for which the proxy is given.
(5) The member’s signature, whether executed by hand or as an electronic signature.
(6) An affirmation under the penalties for perjury that the individual signing the proxy has the authority to grant the proxy to the individual named in the proxy to exercise the member’s proxy.
(c) A member may state in a proxy that the proxy is limited in its use to specific matters described in the proxy.
(d) A member may give a proxy for the meeting referred to in subsection (b)(4) and any continuation of that meeting, if the proxy states that it expires on a stated date that may not be more than one hundred eighty (180) days after the date on which the proxy is given.
(e) A member may create and use a proxy form designed by the member if the form complies with the requirements of subsection (b).
(f) A proxy, or a copy of the proxy, regardless of whether the copy is a paper copy or an electronic copy, that is exercised for any purpose at a meeting must be kept with the records of the meeting.
(g) Notwithstanding subsection (b)(6), a member may submit a proxy that complies with this section by:
(1) hand delivery;
(2) United States mail;
(3) facsimile; or
(4) electronic mail or other electronic means.
As added by P.L.141-2015, SEC.12. Amended by P.L.27-2017, SEC.2.
Thrasher Buschmann & Voelkel, P.C.
151 N Delaware St #1900
Indianapolis, IN 46204
This question really involves a fundamental issue that many communities misunderstand. Any Board member for a homeowners association generally serves until death, resignation, or a successor has been elected. The Bylaws will typically spell out the procedure for electing new Board members and their terms of office, however, state statute dictates that until a replacement is elected the current Board member(s) continue in office. Where a community’s Board will have a full turnover the transition does not usually take place until after the meeting at which they are elected. Therefore, it would be appropriate for all current Board members and officers to run the meeting at which the election takes place. It is normal for the community documents to dictate that the secretary “or other officer or agent authorized to tabulate votes” will be responsible for any proxies received. At the meeting where the election takes place, the secretary or other officer or agent authorized to tabulate votes would provide any proxies to the person who is adding up all votes. In many instances it is either a property manager, the association attorney if present, or any volunteer homeowners. A good practice is to ask for two volunteers at the meeting to tabulate all the votes–proxies and other votes cast at the meeting. In the unusual event that there are legitimate questions, additional homeowner volunteers can be called on to confirm or recount votes.
David C. Wilson
Black, Slaughter & Black , P.A.
1927 S. Tryon St., Suite 100
Charlotte, NC 28203