Defined. An election proxy is a specific power of attorney that allows one person to act on another person's behalf at membership meetings, e.g., to vote. (Civ. Code §5130(a)(1); Robert's Rules, 11th ed., p. 428.) Proxies must be signed. The person receiving the proxy is called a proxyholder. As required by the Davis-Stirling Act, the proxyholder must be a member of the association. (Civ. Code §5130(a)(1).)
Directed Proxies. Civil Code §5130(c) requires that “Any instruction given in a proxy issued for an election that directs the manner in which the proxyholder is to cast the vote shall be set forth on a separate page…” (see sample "Cumulative" and "Non-Cumulative" forms). The first page contains the authorizing language giving the proxyholder the power to vote, the second detachable page contains the instructions on how the proxyholder is to vote on each issue. (Civ. Code §5130(c).) Once a proxyholder registers at the membership meeting, the Inspector of Elections keeps the first page of the proxy. The second detachable page of instructions on how the proxyholder is to vote is given to the proxyholder along with a ballot. The proxyholder then votes the ballot in secret.
Undirected Proxies. Proxies can be undirected, i.e., they do not tell the proxyholder how to vote. Corporations Code 7613(g) only requires that a proxy “sets forth the general nature of the matter to be voted on” for certain actions (election of directors not being one of those action) but does not require the proxy provide for any instructions. That means an undirected proxy allows the proxyholder to vote on issues at their own discretion. There is no particular form of wording required for a proxy. (Smith v. San Francisco & N.P. Ry. Co. (1897) 115 Cal. 584.) Accordingly, the following language is sufficient to constitute a valid proxy given by one member to another: "I hereby appoint [name of a member] as my proxy to vote on my behalf." The proxy must clearly identify the proxygiver's name and unit or lot address and be signed.
Distribution of Proxies. Any form of proxy distributed to 10 or more members of a corporation with 100 or more members must afford an opportunity on the proxy to specify a choice between approval and disapproval of each matter to be acted upon at the meeting for which the proxy is solicited. (Corp. Code §7514(a).)
Term and Revocation. Proxies automatically expire after 11 months unless revoked or unless stated otherwise in the proxy. The maximum term of any proxy is 3 years from the date of execution. (Corp. Code §7613(b).)
Not Required. Because ballots count toward quorum, proxies are no longer needed. Unless an association's governing documents state otherwise, boards are not required to send proxies to the membership.
Recommendation: Because of the potential for election fraud, associations should amend their governing documents to eliminate proxies. Associations can either prohibit proxies, or eliminate quorum requirements for the election of directors. This allows elections to be conducted entirely through the mail and dispenses with the need for proxies.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.