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Q&A: How to Handle Proxy Ballots

Q. I am confused about proxy voting and would like to know the following: 

Do proxy votes need to be in a sealed envelope and opened only during the meeting before all those present, or can they be opened and read before the meeting starts (or even a week ahead)?

Are proxy votes recorded as to who holds whose proxy vote? 

Do these proxy votes need to be recorded in the minutes of the meeting, and who the person is that is using them to vote?

We have a person who runs for a board position time after time, and just before our annual meeting gathers a majority of the votes by soliciting votes from owners who are unaware of his actions. Those in attendance all vote against him, but he gathers enough proxies to win the vote again and again. Is there a way the board can rule out proxies or to limit the amount a single person can hold for voting reasons?

                          —Dubious Condo Voter

A. “First and foremost, all my answers and opinions are given in the spirit of avoiding bad optics for the board, maintaining transparency, and ultimately preserving the integrity of elections, whether on a national, state, municipal, and yes, even at the condo association executive board level,” says Frank A. Lombardi, partner at Lombardi Group, LLC, in Lincoln, Rhode Island. “As we have seen in the past national election for President, matters can get out of hand quickly if people believe something went awry with their votes. Secondly, though I cannot speak for other states—only Rhode Island—I am sure it is relatively the same in my neighboring New England state statutes that there are no specific provisions within the Condo Act which specifically deal with sealed proxies, or when and where they can be read, recorded, and the like.

“Indirectly, though, the RI Condo Act directs that a unit owner has a right to have his or her vote counted by way of proxy. Secondly, if the state statute in any state does not address the question, then you must look to the bylaws of your condominium association. Most bylaws that I have seen, however, do not really get into the weeds, so to speak, regarding your questions. That said, those bylaws all give the boards or unit owners in general the power to institute rules and regulations governing board elections. But even there, I have not seen rules requiring sealed envelopes, or rules governing when envelopes or ballots are to be opened. Proxies may be given, and vote takers on election day must validate them, and if valid, the votes taken thereby must be tallied and counted. Period. 

“With the above in mind, my responses to your questions are as follows:

“Question 1: Do proxies need to be sealed? No. Although it would not hurt to have all proxies sealed—and in fact, if proxies have in the past been compromised, or if there have been instances where the proxy’s authenticity has been questioned, then certainly a rule could be put in place requiring them to be sealed and given to a vote taker at the meeting when and where the election is being held. Remember, though: all proxies can be revoked by the proxy-giver by his or her simply showing up and evidencing an intent to revoke his or her proxy. 

“Question 2: Do proxies need to be opened during the election meeting or read before the meeting? I have not seen any rules on this one way or the other. Vote takers should be assigned at the election itself—and not before—to qualify the proxy holder and the proxy-giver’s vote. I do not recommend that ‘everyone present’ be there to witness the great proxy unveiling. Care should be taken to ensure the privacy of unit owner votes. I recommend that one particular person or persons—hopefully unbiased, but certainly trusted, or a property manager—be tasked with validating the proxies and counting the votes made therewith.

“Question 3: Should the proxy holder and votes thereunder be recorded in the minutes? The vote taker can validate the proxy, tally the votes under the proxy, along with the absentee ballots and in-person votes, and report the results to the board or person conducting the meeting. Thereafter, the report can be read into the record, but again, no one unit owner’s vote should be specifically identified without his or her permission, for privacy reasons.

“Question 4: Monopolizing proxies: The board cannot and should not limit another unit owner from garnering proxies, or disqualify this person from acting as another’s proxy, barring substantial evidence of fraud or other shenanigans. Most statutes and bylaws either expressly or impliedly seek to preserve a unit owner’s right to either vote in person, via proxy, or by absentee ballot. 

“Question 5: Your real issue: a unit owner garners proxies from unit owners unaware of his action. The answer you seek, here, or candidly, in any election, is with education. If you really want to avoid the scenario you’re describing, then take steps to make sure all of your unit owners have access to unbiased information regarding what you perceive to be inappropriate behavior by this Pied Piper unit owner. But remember—just as each unit owner is free to vote, each unit owner is also free to run, and if he wants to get ahead of the game and get proxies, you are free to do the same as well and hit the pavement, so to speak, knocking on doors well ahead of the election. That is the best way to avoid what you perceive is an unfair monopoly on voting.”

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