PROXY REVOCATION IN CALIFORNIA HOA ELECTIONS
For starters, proxies in general are a bad idea not just for the Association but for the Members. This is because there is so much room for fraud. Signatures don’t have to be originals and there is no way to verify that the proxyholder will actually vote the way the proxygiver intended. Associations should do away with proxies altogether whenever possible. But, amending the CC&R’s is sometimes easier said than done. Recently, a member of an Association our firm represents approached a Board member claiming that another member had solicited a proxy from him under false pretenses. When he learned of the deception, he was very distraught. Luckily, revoking a proxy is a fairly simple and straightforward process.
What is a Proxy?
This is one of those areas of HOA law that is widely misunderstood by both Associations and Members. Many believe that a proxy is an actual ballot. Not so. A “proxy” is a form of power of attorney which is limited to meetings. It is a written authorization signed by one member giving another member the power to vote on his/her behalf. (Civ. Code 5130(a)(1); Robert’s Rules, 11th ed., p. 428). The person to whom the proxy is given is called a “proxyholder.”
What is the Proper Form of a Proxy?
Many members who forego legal advice get this wrong. If the proxy is invalid, the Inspector of Election will not issue a ballot to the proxyholder. Proxies must be on two pages. 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 meeting, the Inspector of Election keeps the first page of the proxy. The second detachable instructions on how the proxyholder is to vote is given back to the proxyholder along with a ballot. The proxyholder then votes the ballot in secret.
How Can I Revoke a Proxy?
Many members, like the innocent member who was duped as discussed above, wish to revoke a proxy given by mistake or after thinking about the ramifications of giving up their rights to act to someone with no guarantee they will carry out their instructions. The good news is that proxies expire eleven months after they are issued or on the date specified in the proxy, whichever is sooner. If you can’t wait that long, proxies can be revoked as follows:
- Written notice from the proxygiver to the Inspector of Election stating that the proxy is revoked;
- Execution of a later-dated proxy delivered to the Inspector of Election prior to the vote;
- The proxygiver’s appearance at the meeting requesting a ballot to vote at the meeting and prior to the distribution of a ballot by the Inspector to the proxyholder; or
- The proxygiver sending a ballot to the Inspector of Election which is received by the Inspector prior to the Inspector distributing a ballot to the proxyholder.
Although proxies can be revoked, ballots cannot.
A sample revocation of proxy is provided below:
REVOCATION OF ALL PREVIOUS PROXIES
TO: INSPECTOR OF ELECTION
I, [NAME OF MEMBER], being in good standing with the [NAME OF ASSOCIATION], do hereby revoke all previous proxies.
Member’s Name (PRINT): __________________________________
Member’s Signature: ______________________________________