J.F. from Long Island, New York writes:
Dear Mister Condo,
The Board of Managers of my condo “shall not cast any of its votes for the election of any member to the Board”. Homeowners have the right to vote by proxy. Can the proxy be a board member? The BOMs personally solicited election vote proxies rather aggressively. If they can’t vote, I would assume they can’t be a proxy.
Mister Condo replies:
J.F., that is an interesting question. In many associations, the Board of Directors (or Managers as in your case) are elected by the membership and then hold their own election to determine the offices they will serve. In other words, if 7 unit owners are elected to the Board and the offices are President, Vice-President, Secretary, and Treasurer, the 7 would vote amongst themselves for the various offices and the remaining directors would serve “at large”. In your case, you’re saying that the Board of Managers not only have to run for the Board but also for their particular role on the Board? I would think that is quite challenging and would also eliminate some potentially great candidates from serving as Managers because they lost an office election to another volunteer. In other words, if 5 folks ran for President, only one can win. Does that mean the other 4 can’t serve on the Board until the next election?
All that aside, your governing documents are the place to turn to answer your question. If the Board of Managers are prohibited from voting for the election of any member to the Board, the same may hold true for undirected proxies which they have gathered. Although if the rules don’t specifically prohibit the use of proxies for voting candidates into the Board, they may be well within their rights to do so. Further, directed proxies (proxies with a very specific use, such as voting for a particular candidate that have been collected properly) are almost certainly admissible. After all, those unit owners had their opportunity to participate in the democratic process and have done so via proxy.
I have one final observation. Many associations (including my own) have clauses in their governance documents that allow the Board to fill vacancies between elections. This is very useful in smaller Board where the loss of a Board member can potentially cause the Board to deadlock on votes and effectively stagnate the association until the next election. It sounds like your governance documents prohibit this practice. What happens if a Board Officer leaves the association? Would you run without a Treasurer or President? It might be a good time to speak with the association’s attorney about how your governance documents compare to others and make modifications if necessary. Good luck!