Because the operation of community associations requires members to vote on various matters, it is critical to understand the difference between proxies and ballots.PROXIES:
The following definition found in Webster’s Unabridged Dictionary is a good starting point to understand proxies:
1: the act or practice of a person serving .... as an authorized agent or substitute of another. . .
2 a: authority or power to act for another
2 b: a document giving such authorization; specif : a power of attorney given and signed by a stockholder authorizing a specified person or persons to vote corporate stock...
3 a: a person authorized to act for another . . .
Accordingly, the sole purpose of a proxy is to allow someone else (the proxy holder) to act or vote for the owner (the proxy giver).
On the other hand, the word 'ballot' is defined as follows:
1: An instrument, usually a paper or ball, used for casting a vote.
Accordingly, the sole purpose of a ballot is to permit the voter or the voter’s proxy holder to cast their votes.
From the above, it is clear that the two instruments have completely different functions and that the following two step process is required when a proxy is used:
1. The owner must sign a written proxy designating someone else to attend and vote for them, and
2. At the appointed time, the proxy holder must cast the ballot for the owner.
CONFUSION CAUSED BY LIMITED PROXIES:
Unfortunately, we have found that confusion is created when associations choose to use limited proxies.
Limited proxies are proxies which direct that the proxy holder vote in a certain way. For instance, the owner might direct that the proxy holder vote 'yes' on a proposed amendment to a governing document.
By adding this direction into the proxy instrument, the proxy appears to become both a ballot and a proxy. However, this is not the case. This addition only requires that the proxy holder vote on those designated issues in the fashion directed when it comes time to cast the owner’s vote.
Accordingly, even if a limited proxy is utilized, the following two step process must still be used:
1. The owner must sign a written proxy designating someone else to attend. However, in this instance the owner directs how the proxy holder must vote, and
2. At the appointed time, the proxy holder must cast the ballot for the owner. However, now the proxy holder must vote in the fashion directed by the owner.
It is important to refer to your governing documents and the Florida Statutes for proper and permitted uses of proxies and ballots for your particular association.
The firm of Taylor & Carls, P.A., with offices located in Maitland, Melbourne, Tampa and Daytona Beach, Florida, was founded in 1981 and has practiced in the area of community association law since that date. This edition was prepared by Robert L. Taylor, Esq. of Taylor & Carls, P.A. The information contained in The Association e-Lawyer should not be acted upon without professional legal advice.
©2006 Taylor & Carls, P.A. All Rights Reserved.
The firm can be reached at 407-660-1040.
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