For board member proxies, see Index, proxy of board member.
Do you know what to do if the board receives an appointment of proxy from a member by telegram? Is it valid? Modern advances in communications allow lightning fast delivery of information and communications that put the Pony Express to shame. Because of trends favoring the use of these modern forms of communication, all boards should be prepared if they receive an appointment of proxy from a member by teletype or telegram! (Yes, this is tongue in cheek, but the point stands as to electronic methods, such as email or even text message).
What is a Proxy? A proxy is a power of attorney that allows one person to act on another person's behalf at a meeting. Strictly speaking, a proxy is the person acting on another's behalf, and a proxy appointment is a form or other writing that appoints the proxy.
Can an HOA Member Use a Proxy? The law authorizes a member of an incorporated association to vote or otherwise act by proxy, unless the bylaws specifically limit the use of proxies. Accordingly, the board may not limit how a member uses a proxy, unless the bylaws authorize the board to do so. If the governing documents say association business must be conducted according to Robert's Rules of Order, the members may not use proxies, unless the bylaws or articles specifically say proxies may be used.1
How Does an HOA Member Use a Proxy? The law doesn't limit how a proxy may be appointed, but it does provide some methods that are deemed valid.
- The first is appointing a proxy by signing an appointment form. Note that "signing" includes anything (such as a name, mark, or sign) written with the intent to authenticate a writing. For instance, if a person types out their name in an email with the intent to sign it, the typed out name is their signature. Also, a copy (including an electronic transmission) of a proxy form is as valid as the original.
- The second doesn't even require a signature. This methods allows a member to appoint a proxy by sending to the proxy or the association, a fax, email, text message or other electronic transmission (or even a teletype or telegram!) appointing the proxy. It must contain some evidence that the person sent it, such as if it is an email that came from the person's known email address or a text from the person's known phone number, or some other written evidence from which it can be determined that the member transmitted the appointment.
Example: The board of the Morning Grove Homeowners Association receives an email from an email address they know to be that of a member. The email states:
I am a member of the Morning Grove Homeowners Association and I appoint John T. Doe, owner of unit 22, to be my proxy to vote on my behalf at the meeting of the Association on January 1, 2020.
I hereby sign this appointment of proxy by typing my name and I declare under penalty of perjury that I am the person whose name I have typed below.
Signed: Robert Smith. Owner of unit 33.
Note there is no graphical or "wet ink" signature. This method of appointing a proxy satisfies both of the methods above. The board may (if acting in good faith) accept the proxy appointment as valid.
See Utah Code § 16-6a-712(2).
How Long is a Proxy Valid? A proxy appointment is valid for 11 months unless a different period is stated in the appointment form. If a proxy appointment specifies that it is for the purpose of a specific meeting, then it is only valid for that meeting.
Can a Proxy Be Revoked? Attending a meeting and voting in person automatically revokes the appointment of a proxy (so, if they both vote, it's the person's vote that counts, not the proxy's). A member can also revoke the proxy in writing to the association, or in a subsequent proxy appointment.
Can an Association Reject a Proxy? An association is entitled to reject a proxy appointment if the secretary or other officer or agent authorized to tabulate votes, acting in good faith, has reasonable basis for doubt about the validity of the signature on it or the signatory's authority to sign for the member. An association may also reject a proxy appointment that doesn't meet requirements specified in the bylaws.
Accepting Proxies. If the name signed on a proxy appointment corresponds to the name of a member (or is an officer or agent of a member that is an entity), the association, if acting in good faith, is entitled to
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(For reference: 57-8 is the Condo Act, 57-8a is the Community Association Act, 16-6a is the Nonprofit Act)