A “proxy” is a written authorization “signed” by a member of an association (or the member’s authorized representative) that “gives another member or members the power to vote on behalf of that member.” (Civ. Code § 5130(a)(1).)
“Signed” – A proxy is “signed” by placing the member’s name on the proxy (whether by manual signature, typewriting, telegraphic transmission, or otherwise) by the member or the member’s authorized representative. (Civ. Code § 5130(a)(2).)
Because elections are conducted via secret ballot, and because ballots received by the association’s inspector(s) of elections are counted in establishing quorum, an association has no legal obligation to allow for proxies unless otherwise stated in its bylaws, nor does an association have an obligation to prepare or distribute proxies. (Civ. Code § 5130(b).) Determining the authenticity, validity and effect of any proxies issued in an association election are duties which must be performed by the association’s inspector(s) of elections. (Civ. Code § 5110(c)(2); See also “Inspectors of Elections.”)
Eligible Proxyholders: Members Only
A proxy may only be given to another member of the association. (Civ. Code § 5130(a)(1).) A person who is not a member of the association is therefore not eligible to serve as a proxyholder.
Form of Proxy
Subject to certain limited exceptions set forth in Corporations Code Section 7514, the issuance of a proxy generally requires the use of two (2) pages. The first page of the proxy contains the written authorization signed by a member or the authorized representative of the member that gives another member (the proxyholder) the power to vote on behalf of that member. (Civ. Code § 5130(a)(1).) The second page contains any instruction given that directs the manner in which the proxyholder is to cast the member’s vote; this second page must be detachable so that it may be retained by the proxyholder. (Civ. Code § 5130(c).) The proxyholder then votes in the election via secret ballot. (Civ. Code § 5130(c).)
Term of Proxies
Proxies automatically expire after eleven (11) months unless stated otherwise in the proxy, but in no event may a proxy have a term of more than three (3) years. (Corp. Code § 7613(b).) Proxies remain in full force and effect until revoked by the person executing the proxy prior to the vote. (Corp. Code § 7613(b).)
Revocation of Proxies
Proxies continue in full force and effect until revoked. (Corp. Code § 7613(b).)
Methods of Revocation
Prior to receipt of the proxyholder’s completed ballot by the inspector of election, a proxy may be revoked by any of the following methods: (Civ. Code § 5130(c); Corp. Code § 7613(b).)
- Notice of Revocation – the proxygiver may give written notice to the association’s inspector of election stating that the proxy has been revoked;
- Execution of Later-Dated Proxy – the proxygiver may execute a subsequent proxy and deliver it to the inspector of election;
- Appearance at the Meeting – the proxygiver may appear at the meeting and request a ballot to vote at the meeting, prior to the distribution of a ballot by the inspector of election to the proxyholder; or
- Return of Ballot by Proxygiver – the proxygiver may send a completed ballot to the inspector of election prior the inspector of election distributing a ballot to the proxyholder.
Death or Incapacity of Proxygiver
A proxy is not revoked by the death or incapacity of the proxygiver unless, before the vote is counted, written notice of such death or incapacity is received by the association. (Corp. Code § 7613(c).)
Ballots are Irrevocable
By contrast, ballots are irrevocable once they have been received by the inspector(s) of elections. (Civ. Code § 5120(a).)
