TRYING NOT TO LAUGH

 

 

 

It’s a great story, if true.  Leaving aside, for now, the possible jokes about politics and idiotai and half-wits, it is a fascinating history of a little-understood method of exercising the voting franchise.  The word itself was not used in ancient Greece.  It comes from Middle English, from about the 13th Century, with roots in the work “procure” meaning “to get or obtain or take care of.”  Through the centuries many societies and governments authorized the use of proxies to cast votes in elections or in legislatures and assemblies.  Proxies are still allowed in public elections or in voting by governing b bodies in some countries, including the United Kingdom, New Zealand, Canada and India.  In the United States, proxies are not allowed in public elections or in Congressional votes, and usually not in state legislatures or local government assemblies.  They are most often used in corporate elections-and in community associations.  Proxies, despite being allowed in most community associations, are often a source of conflict or misuse in community association votes and viewed as the skunk at the wedding, spreading fear of a possible stink.  It appears the major problem with the use of proxies is confusion.  I once received a call from several members of a board of directors wanting to know if it was legal for a member who would be out of town to use a “pixie” to vote in a highly contested election.  As most everyone knows, a pixie is a mythical creature of folklore said to have magical powers.  A proxy is a written creature of statute authorizing someone to cast a vote and has legal powers.  They are both useful but are hardly inter-changeable. 

Pixie problems notwithstanding, proxies are most often confused with ballots, absentee ballots and petitions.  Pre-cast ballots, absentee ballots and, in some circumstances, petitions, are means for the homeowner to cast a vote when he or she cannot be present for the actual vote.  Such votes are those of the homeowner himself or herself and not the vote of an appointed third party.  But not all association documents allow absentee ballots or pre-cast ballots.  The homeowner has to be present or vote by proxy. 

On the other hand, a proxy is a lot like a marriage certificate: it is a legal document that grants someone else the authority to make decisions you would ordinarily make.  A proxy allows the holder to vote as if the holder was the member or the homeowner, to decide how to exercise the vote, with no reservations on the authority.  A homeowner can grant a proxy for one particular vote or for all votes to be cast during the period the proxy is in force.  The homeowner can appoint any competent person as a proxy to act on the homeowner’s behalf, including non-members, a member of the board, the board itself, or a pixie, if one can be found.

Voting by proxy in all community association election is authorized in Section 47F-3-110(b) of the North Carolina General Statutes.  The statute is unequivocal:  “Votes allocated to a lot may be cast pursuant to a proxy duly executed by a lot owner.”  If anyone has a question about whether proxies are allowed in community association elections, the answer is “yes,” at least in associations subject to the Planned Community Act.  Furthermore the majority of association documents specifically allow voting by proxy. 

In the community association context a proxy must be written as the statute requires it to be “duly executed,” which means signed by the homeowner granting the proxy.  The statue also requires that a proxy be dated, and it terminates after eleven (11) months if no shorter termination date is provided in the proxy itself.  If the homeowner wants to revoke the proxy before it terminates, the homeowner must give actual notice to the person presiding over a meeting of the association. 

Some associations also specifically allow the members to vote to amend documents or on other administrative matters by signing a petition or agreement.  These documents do not grant the holder the same right to act independently as does a proxy and they are not generally controlled by statute.  They are most like ballots or petitions, in that the vote is actually made by the member homeowner.

Anyone who has been charged with conducting an election in a community association knows that it is a challenge to secure enough interest and participation to ensure the vote is both legal and a fair representation of the wishes of the community.  Proxies, petitions and absentee ballots are tools the association may use to meet that challenge.

Rather than feel threatened by the use of proxies, association boards and managers should embrace their use because at least it means the member/homeowner is interested and paying attention.  Boards, managers, pixies, and idiotai can all appreciate increased community participation.