BOD Election Procedures

[Guest Bill]

This question is to ask your opinion regarding our Annual Meeting and BOD Elections procedures. Proxy/Ballots were mailed to all members which can either be mailed or submitted when a member registers at the meeting. Two BOD positions were up for election as the terms for two were expiring. Two members were nominated to fill the two vacancies and their names appeared on the proxy/ballot mailed to all members. There are 346 voting members in the association, 193 proxy ballots were returned and 78 voting members attended the meeting.

In accordance with our documents, nominations from the floor and write ins are allowed. Three write in nominations were submitted on the proxy/ballots. The meeting chair asked each write in nominee present at the meeting if they accept the nomination - two declined and one accepted.

The chair then asked for nominations from the floor. None were offered and nominations were closed.

The chair then announced that there are now three nominations for election to the BOD. He then stated that if any member would like to change their vote they should go to the registration desk and have their original proxy removed and request a new proxy/ballot and submit that as their final ballot.

Would you agree that this is a proper process.

[Gary Novosielski]

No. 

There is no such thing as a Proxy/Ballot.   It is either a proxy or it is a ballot--in this case presumably an absentee ballot.  Both proxies and absentee ballots are prohibited by RONR unless authorized in your bylaws.  You don't say if they are.  But since, if they aren't, the whole election is void, let's proceed as if they are authorized in your bylaws.  Ideally, there would also be written rules on how to use them, so you should make sure to check.

RONR advises in the strongest terms that you never use a voting method that mixes absentee votes with in-present votes.  I think you can see why, based on what happened.

I know what a write-in vote is, but it's not the same as a nomination. It sounds like you looked through the absentee ballots to see how they voted, and treated that like a nomination.  This is completely wrong.  There is such a thing as a nominating ballot, but they are used only to nominate, and different ballots are used in the election.  Opening and looking through the ballots before the election was also wrong.  Was the secrecy of the voters maintained in the process?  I don't see how it could have been, if it were later possible for members to reclaim their ballots.  How would you know which one was theirs?

So everything you have described was in whole or in part incorrect.

I'm sure the rest was fine.

 

[Guest Bill]

I think I need to clear a few things up so I get all this right. Our 30day notice of meeting includes a form titled "Proxy". It:

1. Names BOD President as Proxy Agent for the meeting

2. Includes a section for the election of two directors which lists the two nominated by our nominating committee and a separate line called "write in". (Our  election rules state nominees for election to the BOD shall be made by a nominating committee, which may complicate this even further)

My error calling it a proxy/ballot. The word ballot is not on the "Proxy", but voting by members is accomplished on this Proxy by checking the box by the names on the form or by writing in another name.  Here is where I really get lost.  Is the "write in" on the Proxy a vote or a nomination? My thinking is that it is a vote since I don't see any way it could be a nomination, which leads me to question why the chair announces that there are now three nominees.

I don't know what the strict definition of absentee ballot is, but most of our members return their proxies by mail and there are a few who submit them when they register at the meeting. There is absolutely no breach of any members voting privacy or secrecy. None of the things you mention in the third paragraph of your response happened. Proxies are maintained secretly by our Management Company until the annual meeting where they are only seen by two election inspectors when they are counted.

Members who wanted to change their vote would have to request the Management Company return it to them at the meeting registration desk. Which leads me to question whether it is proper for the chair to offer the opportunity to change the vote. With only a small fraction of members present at the meeting, not all members would be afforded the same opportunity. I think the write in should have been considered a vote, not a nomination, and the vote count accomplished without any opportunity to change anyone vote.

Looking for help on this at this time - But it looks like we may have to take a really close look at how we elect or BOD in the future.

Sorry to ramble

Bill   

[Gary Novosielski]

On 5/19/2023 at 12:07 AM, Guest Bill said:

I think I need to clear a few things up so I get all this right. Our 30day notice of meeting includes a form titled "Proxy". It:

1. Names BOD President as Proxy Agent for the meeting

2. Includes a section for the election of two directors which lists the two nominated by our nominating committee and a separate line called "write in". (Our  election rules state nominees for election to the BOD shall be made by a nominating committee, which may complicate this even further)

My error calling it a proxy/ballot. The word ballot is not on the "Proxy", but voting by members is accomplished on this Proxy by checking the box by the names on the form or by writing in another name.  Here is where I really get lost.  Is the "write in" on the Proxy a vote or a nomination? My thinking is that it is a vote since I don't see any way it could be a nomination, which leads me to question why the chair announces that there are now three nominees.

I don't know what the strict definition of absentee ballot is, but most of our members return their proxies by mail and there are a few who submit them when they register at the meeting. There is absolutely no breach of any members voting privacy or secrecy. None of the things you mention in the third paragraph of your response happened. Proxies are maintained secretly by our Management Company until the annual meeting where they are only seen by two election inspectors when they are counted.

Members who wanted to change their vote would have to request the Management Company return it to them at the meeting registration desk. Which leads me to question whether it is proper for the chair to offer the opportunity to change the vote. With only a small fraction of members present at the meeting, not all members would be afforded the same opportunity. I think the write in should have been considered a vote, not a nomination, and the vote count accomplished without any opportunity to change anyone vote.

Looking for help on this at this time - But it looks like we may have to take a really close look at how we elect or BOD in the future.

Sorry to ramble

Bill   

I'd still like to know what your bylaws say about either proxies, or absentee ballots, or both.  An absentee ballot is simply a ballot cast by someone who is not present at the meeting, and who does not vote in person.

Your description of the "proxies" seems to meet the definition of an absentee ballot rather than a proxy, since they appear to serve no function other than casting of votes as directed by the member.  Is there any language in the bylaws or on the "proxy" form authorizing the president, as "Proxy Agent",  to cast these votes differently, say, in the event that the election goes to a second or subsequent ballot, should there be no majority choice on the first ballot?  In fact, are any of these rules listed anywhere in the bylaws or Special Rules of Order?  What would happen if no candidate received a majority (more than all other candidates combined) on the first ballot?

Do I understand that if a ballot is returned to a member, it is returned unopened?   Do I further understand that there actually are two people who can see how someone voted, or are there procedures (such as dual envelopes) in place to prevent that?

If secrecy is being preserved, how did the president know that there were any write-ins?  Apparently the contents of the ballots were known, and if they could not be tied to a member's name, I don't see how they could be returned.

If the rules in RONR apply (and I'm not yet sure that's the case) the president was incorrect in examining the ballots before they were counted.  And there's no reason he should need to, since ballots are not nominations.  The write-in votes are simply write-in votes, and should be counted as such.  By definition, a write-in vote is a vote for an eligible person who has not been nominated, so I don't understand the president's thought process at all.

There's nothing particularly wrong with a member changing his vote as long as it's done before the count begins, while it is still possible to identify the proper ballot.  But as I've noted above I don't see that any convincing motivation remains for announcing that fact.

Edited May 19, 2023 at 04:36 PM by Gary Novosielski

[Guest Bill]

Regarding proxy in our bylaws: reference to "proxy" is made under Quorum stating "a quorum at any meeting of members shall consist of the presence at such meeting, in person or by proxy, of member entitled to cast one-third of the total votes of the association; and again under Voting stating "Where any member is a group or entity other than one individual person, the vote on behalf of such member shall be exercised only by such individual person as shall be designated in a proxy instrument duly executed on behalf of such member.

There is nothing regarding absentee ballots.

The proxy form contains the statement "the undersigned members of XXX HOA appoints Mr X, President of the Association Board of Directors or his assign, as proxy agent for the above meeting and any adjournments thereof and stipulates that said Proxy Agent vote as so indicated on the following matters:

This statement is followed by 1) a section for election of directors where two names appear and a write in space is also provided; 2) a section for vote on the election of the Tax Resolution 3) a member name line, property address line and lot number line; 4) a section to confirm a designated voter if the lot is owned by more than one person and finally a signature and date line. Our By Laws under Election state that election to the BOD shall be by written ballot and the persons receiving the largest number of votes shall be elected. So there would not be a case where there would be a second or subsequent ballot.

Proxies are mailed to our Management Company who opens them and stores them confidentially until they bring them to the members meeting. This is how they knew there were writs ins and how they notified the President. No one but the Mgmt Co sees the proxies until they go to be counted by the election inspectors. 

Hope this answers some of the issues you were concerned about. Will wait your opinion based on this information.

About a proper process:

Is it proper for the chair to ask if any members want to change their vote based on a write in vote. If it were a nomination from the floor would that be proper?

With only a small fraction of members present at the meeting, not all members would be afforded the same opportunity. I think the write in should have been considered a vote, not a nomination, and the vote count completed without any opportunity to change votes, except if a member specifically expressed the desire to change. What do you think?

[Gary Novosielski]

On 5/19/2023 at 8:38 PM, Guest Bill said:

Regarding proxy in our bylaws: reference to "proxy" is made under Quorum stating "a quorum at any meeting of members shall consist of the presence at such meeting, in person or by proxy, of member entitled to cast one-third of the total votes of the association; and again under Voting stating "Where any member is a group or entity other than one individual person, the vote on behalf of such member shall be exercised only by such individual person as shall be designated in a proxy instrument duly executed on behalf of such member.

There is nothing regarding absentee ballots.

The proxy form contains the statement "the undersigned members of XXX HOA appoints Mr X, President of the Association Board of Directors or his assign, as proxy agent for the above meeting and any adjournments thereof and stipulates that said Proxy Agent vote as so indicated on the following matters:

This statement is followed by 1) a section for election of directors where two names appear and a write in space is also provided; 2) a section for vote on the election of the Tax Resolution 3) a member name line, property address line and lot number line; 4) a section to confirm a designated voter if the lot is owned by more than one person and finally a signature and date line. Our By Laws under Election state that election to the BOD shall be by written ballot and the persons receiving the largest number of votes shall be elected. So there would not be a case where there would be a second or subsequent ballot.

Proxies are mailed to our Management Company who opens them and stores them confidentially until they bring them to the members meeting. This is how they knew there were writs ins and how they notified the President. No one but the Mgmt Co sees the proxies until they go to be counted by the election inspectors. 

Hope this answers some of the issues you were concerned about. Will wait your opinion based on this information.

About a proper process:

Is it proper for the chair to ask if any members want to change their vote based on a write in vote. If it were a nomination from the floor would that be proper?

With only a small fraction of members present at the meeting, not all members would be afforded the same opportunity. I think the write in should have been considered a vote, not a nomination, and the vote count completed without any opportunity to change votes, except if a member specifically expressed the desire to change. What do you think?

Okay, I see why the proxy terms are being used since that's what the bylaws require.  Do the bylaws authorize election by a plurality, and if not, how would a second ballot be held if necessary (no majority in the event of three candidates, say)?

It sounds like members sign their own ballot proxy, making it identifiable as their vote.  I'm having trouble thinking of that as  a secret ballot.  If I understand correctly, the Management Company knows how particular members have voted. Maybe they don't tell anyone what they know, but to be considered truly secret, they should be unable to do so; i.e., they should not know.  And then they send the proxies to the election inspectors?  And who are they? Are they members?  Do they see the signed proxies?  It may be that you're stuck with this under your current bylaws, but be aware that there are better ways.

As to the process, this is why RONR advises strongly against any procedure where votes of absentees are mixed with the votes of those present.  I still don't know how the president was able to see write-in votes before the votes were sent to be counted. That would see to be at odds with the description of how the proxies are handled.  But in any case they were write-in votes and were not nominations, and should not have been treated as such.  There was no reason to read them or reveal them to the assembly.  

I do not think it was proper to announce that members could change their votes. I know I said it was generally not a problem as long as vote counting had not begun, but that assumed that the ballots were still sealed.  If the president had advanced knowledge of some or all of the votes, and then recommended that members change their votes, that raises some very serious questions.

The best procedure would have been to just count all the votes, and treat them all the same, whether mailed in or carried in, without peeking at any of them.