Proxy Dispute Divides Board Members While Angering Owners
Question: We have a five-member board that is sharply divided, 3-2. There has been an ongoing dispute over the handling of the proxies since our annual meeting took place.
The association uses a management company only for clerical needs, assessment billing and collection. The board members handle the other business affairs of the association. The board requested that all proxies be returned far in advance of the meeting. When I asked who had access to the submitted proxies, I did not receive a reply.
I submitted a proxy, but then attended the meeting. When I and other owners asked to have our proxies returned so that we could vote at the meeting, we were refused.
Must an owner use the proxy form submitted by the association, or can a self-prepared proxy be submitted? Should an owner’s proxy be returned to that owner if he or she attends the meeting and asks to retract the proxy? How many people should be involved in the handling of proxies and when should they be registered for the meeting?
Answer: In most associations, an owner can submit any form of proxy. But homeowners often believe that only the proxy form provided by the association is acceptable.
Arguments over proxies are so prevalent in some associations that they always have an attorney present to assist the inspectors of election. Because of election controversies, some associations have even taken a vote of the members to amend bylaws so that only the “official proxy” sent out by the association can be used. Such a bylaw change is allowed according to corporations code if the proper member majority approves the bylaw amendment.
You and others who wanted to have your proxies returned at the meeting were acting within your rights. The proxies should have been returned to the individuals who requested them and ballots should have been provided.
If you feel that the outcome of the election was affected, you have a right to file an action to have the election examined by the court. Legal action must be commenced within nine months of the election. It is prudent to investigate sooner rather than later.
Bylaws usually state that proxies are to be registered before the start of the meeting. When proxies are being gathered, privacy of the voters should be protected. If an association has a management company, the voters are often instructed to return their proxies to the manager. In many associations, the board secretary receives the proxies and registers them just prior to the meeting.
Of course, voters who choose to use a directed proxy should assume that they are giving up their right to a secret ballot; however, they should not have to fear that everyone in the association is going to know how they voted.
Votes should be counted by the inspector, or inspectors, of elections, either one or three impartial people, who are appointed to oversee the election process and the tallying of the votes.
Association May Place Limits on Rover’s Size
Q: The new “pet law” that you’ve mentioned in other columns is causing some confusion in our condominium complex. Our association allows dogs, but they must weigh less than 20 pounds. Is this restriction enforceable?
A: Yes, your association is allowed to restrict the weight of dogs. Civil Code 1360.5 states that pets are “subject to reasonable rules and regulations of the association.” However, if a large dog was in residence before a weight limitation was imposed, the dog can remain until the owner moves or the dog dies.
The association members, especially the board of directors, should be aware that exceptions must be made for the disabled. If a disabled owner or resident owns a large service or assistance dog, the special needs of the disabled person must be accommodated.
*
Jan Hickenbottom is a community association management consultant and a founding director of the California Assn. of Community Managers. She selects questions of general interest for the column and regrets that she cannot respond to all questions. Send questions to: Condo Q&A;, Private Mailbox 263, 4790 Irvine Blvd., No. 105, Irvine, CA 92620-1998.
