Cable TV ballot in the mail...who lied?

[Zebra Top]

Originally Posted by Wilbur

The software got unstuck and the meeting just started on channel 5

Thanks Wilbur, I watched it today.

I don't know quite what to say, except that I am real glad that I did not sign a proxy. Had I, I would be disappointed in how I was represented at the meeting.

[Maximus]

Wilbur the second opinion on the MBA came after we obtained new counsel, and a new board was elected. The first attorney was representing both parties (RMA and PTF) on the MBA negotiations, was he not? The board back then (including those who were near and dear to you) recognized and approved the representation knowing of the conflict. I probably wouldn't have. Hindsight is always 20/20 but that was quite an unusual situation and not one to be compared to this situation. Boards just don't get second opinions because the folks on the wrong end of the opinion demand that they do so.

Does 3-0 really mean that much Wilbur? If so what is your win-loss record in your real job? My guess is that you are closer to the 2008 Detroit Lions than the 2007 New England Patriots. Does that reflect what kind of lawyer you are? Probably not and it shouldn't. I venture to say 3-0 doesn't mean anything. Every case brings it's own facts and legal issues.

I have yet to see the meeting so I will watch it on channel 5 before I comment.

[Wilbur]

Originally Posted by Zebra Top

I don't know quite what to say, except that I am real glad that I did not sign a proxy. Had I, I would be disappointed in how I was represented at the meeting.

My alternative was to politely allow RMA to illegally steamroll the RMA membership's rights. I know people don't like conflict. I don't either. But bullies have to be stood down.

Max, the difference between my day job and my avocation is that as a private person I get to choose my cases. I've only gone to court on slam dunks where RMA has so egregiously violated the law that it glows in the dark. Those are also not examples of great lawyering. They are examples of arrogant lawbreaking which any competent lawyer could overcome.

[Wilbur]

Originally Posted by Maximus

Wilbur the second opinion on the MBA came after we obtained new counsel, and a new board was elected. The first attorney was representing both parties (RMA and PTF) on the MBA negotiations, was he not? The board back then (including those who were near and dear to you) recognized and approved the representation knowing of the conflict. I probably wouldn't have. Hindsight is always 20/20 but that was quite an unusual situation and not one to be compared to this situation. Boards just don't get second opinions because the folks on the wrong end of the opinion demand that they do so.

Not accurate. Stein did not represent both sides in those negotations, that is a gross misstatement of fact. PTF was represented by its own lawyers in the negotiations.

Stein had never represented PTF. Stein had, however, been an associate in Curt Sproul's law firm. i had locked horns with him a bit in the 96(?) annual membership meeting when he tried to dodge my question as to why the many disparate changes in the restated CC&Rs could not have been broken into several ballot items instead of a lump of impoortant people's pet agendas mixed in with the essential changes re: stripping the developer of the developer-written special rights which Curt Sproul, having served as the developer's attorney and then installed by the developer as RMA's, had written. The legitimate concern about Stein's firm, which I shared and expressed at the time, was that like most HOA firms they had a built-in disincentive to offend developers, because it is developers who provide all the new business for those specialists, installing them as counsel for new CID associations which they create.

The Board which you denigrate removed Stein and hired Berding and Weil, whose specialty is doing construction defect litigation against developers on behalf of "post-transition" (homeowner run) associations. Then, precisely "because the folks on the wrong end of the opinion demand(ed) that they do so," and to re-satisfy themselves as to the correctness of the MBA decision, they commissioned Weil's firm to review the history of the Letter Agreement litigation and the MBA and give that second opinion.

I'm not saying RMA should seek a second opinion because I say they should. I'm saying they should know by now that the advice is suspect, and if as Dick says their only reason for resisting the members' will on FOC is being trapped by the obligation to follow counsel's advice, it is in their own and the corporation's best interest to test that advice by double-checking it with an attorney who has not bet the client account on an opinion which was not written to confidentially explain to their counsel both sides of the issue and the relative strengths and weaknesses, which as Luke notes is what a competent private opinion letter does, but was a one-sided puff piece written to frighten the membership.

And that consultation could be had for a small fraction of what RMA wasted by forcing the election into court.

As I told them, and you, that question too was a slam-dunk, and it was.

[Zebra Top]

Originally Posted by Wilbur

My alternative was to politely allow RMA to illegally steamroll the RMA membership's rights. I know people don't like conflict. I don't either. But bullies have to be stood down.

I didn't get the impression from watching the meeting that it was RMA doing the steamrolling, illegally or not. Wilbur, you are not holding court at board or "membership" meetings, and you are not dealing with professional litigators. They are your neighbors, and fellow members of the association, doing their best to voluntarily serve our community. The way you speak down to them, in my opinion, is appalling. And I don't just mean our Directors. The way you treated our Inspector of Elections made me cringe. Also, my guess would be that the members had no idea, when they signed their proxy over to George, that their proxy would be used as a vote in the Annual Membership Meeting. If I recall correctly, the talk then was that you would be calling a separate meeting to hold a vote for FOC. How many of them would have actually wanted to obstruct the rest of the business of the Annual Membership Meeting, I wonder.

[Wilbur]

Z, this is not a social club, this is a corporation governed by laws in which each of us has a half million dollar or so stake.

We intended a special election which, if RMA had obeyed the law, would have been held around August. RMA dragged its feet and forced whether there would even BE an election into the courts. As I explained to the Board, over Mike and Dick's attempts to shut me up, THEY requested that we write into the court order that the special election instead be consolidated into the general annual meetingm and we voluntarily agreed. The voting for motions language was spelled out right there in the proxy everyone signed and which I read at the meeting for those who questioned whether the proxies could be voted at the meeting. It was intended when drafted to be used at the contemplated special meeting but RMA, not us, wanted to consolidate the meetings, which made them votable at the annual meeting. The alternative was to give up the authority, which the proxy explicitly gave, to vote those shares at the meeting at which the election on FOC was to take place.

The motion voting authorization was put there precisely so that RMA could not play games at the meeting but the majority who had given proxies would be able to control the floor action. RMA indeed tried to play games by trying to complete its preferred business, leave the FOC business unfinished, and forestall indefinitely the vote on FOC, which is to take effect on the first of the year. What I did was a parliamentary maneuver which forces RMA to get the FOC election completed before the first of the year in order to be able to complete the IRS motion, which we all agree is important.

You will notice that I started off quite respectfully and was ignored. I did, I agree, become more combative when obstructed from making my motions by a President who does not understand the difference between a Board meeting and a membership meeting. In the latter the power is vested in the members, not the directors. Giving up power does not come easily to some.

I generally deal very politely and respectfully with the Board even when I have serious disagreements with them. You suggest I was mean to the Inspector of Elections. I disagree. All I did, as a representative of the majority of the membership who gave proxies to FOC, was call upon him to do his duty and note that he had failed to do so. The law requires him to determine which proxies were eligible to vote at the meeting to be conducted that night, and we had given him two days with the proxies to do so. He chose to put that aside and do what the Board wanted him to do, which was to determine the uncontested Board election and their two motions, thus shirking his statutory duty to determine the proxies eligible to vote at that meeting. I called him on that, I admit. It was right to do so. By putting what the Board wanted ahead of his statutory duties he had rendered the Association incapable of conducting any floor business on the scheduled day of the meetingother than an adjournment motion required by his failure to perform that fundamentally necessary predicate to a meeting.

I very politely approached Mr. Silvis in APRIL seeking a response as to how he wanted to address the exchange of proxies for ballots. He ignored me. Courtesy is a two way street.

I am sorry that my forcefulness dismays you. But you can't stop a steamroller with a feather.

[Wilbur]

Hand delivered by me to Mr. Silvis in April. Never the courtesy of a reply.

Dear Mr. Silvis:

We are preparing proxies to collect regarding the proposed Bylaws amendment regarding the funding of the cable system. That election will be conducted in the context of a special meeting of the membership called upon the petition of over 5% of the membership in accordance with Article V, Section 3 subpara. (b) of the Bylaws. Because the petition will call for a special meeting, it differs from an “Action by Written Ballot Without A Meeting” election pursuant to Bylaws Article IV, Section 7. We wish to determine the procedure you would prefer regarding the submission of those proxies and the casting of those votes. As a “test drill” I am submitting my proxy, with John Merchant named as my proxy holder, to you for use in the current Bylaws amendment election regarding quorum.

Under the new elections law, proxies are not “ballots” as we used to use them, but a proxy may still be used to have another member cast your written ballot for you. Article IV Section 4, subpara. (c) of our own Bylaws provides that “Members otherwise eligible to vote at a meeting may do so in person or by proxy....” (See, also, Article IV, Section 6).

Article VII of RMA’s recently adopted Election Rules recognizes that while proxies are not ballots, proxies may be used in RMA elections. Therefore the proxyholder must be provided with a ballot to cast as directed.

I am submitting my proxy to you on this, the ballot submission deadline. I request that you provide my proxy holder, John Merchant, with a ballot to cast on my behalf.

The principal question I am hoping to resolve via this “test drill” is when and how proxy submission and the casting of those proxy ballots should occur. Under the new law we can no longer just submit the proxies as ballot equivalents: we have to exchange them with you for official ballots. Timing is confusing. The current quorum ballot says ballots must be cast by April 10. Yet the preferred procedure, as described by the law firm website quoted below, seems to be to appear at the “count” meeting and submit the proxies then. That way you can verify that you do not have a ballot independently cast by the person who gave the proxy so there is no risk of double-voting. We wish to verify with you that proxies brought to the “count” meeting will not be considered “late,” or whether you would prefer to meet with the proxyholder prior to the ballot mail-in “due date” to exchange proxies for ballots for the proxyholder to cast at that time. We believe meeting at the “count” meeting, as suggested by the law firm quoted below, works best for all concerned and believe that is consistent with the Bylaws and the Code. But you are the Inspector of Elections, so what matters is what is acceptable to you.

Below is some relevant information from the statute, our own election rules, and one prominent HOA law firm’s website regarding this process. Please let me know whether my proxy will be honored and Mr. Merchant supplied a ballot to be cast on my behalf, or what procedure you believe should be followed for submission of proxies.

Battin bill (1363.03):

(b) Notwithstanding any other law or provision of the governing documents, elections regarding assessments legally requiring a vote, election and removal of members of the association board of directors, amendments to the governing documents, or the grant of exclusive use of common area property pursuant to Section 1363.07 shall be held by secret ballot in accordance with the procedures set forth in this section. A quorum shall be required only if so stated in the governing documents of the association or other provisions of law. If a quorum is required by the governing documents, each ballot received by the inspector of elections shall be treated as a member present at a meeting for purposes of establishing a quorum. An association shall allow for cumulative voting using the secret ballot procedures provided in this section, if cumulative voting is provided for in the governing documents.

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(d) (1) For purposes of this section, the following definitions shall apply:
(A) "Proxy" means a written authorization signed by a member or the authorized representative of the member that gives another member or members the power to vote on behalf of that member.
(B) "Signed" means the placing of the member's name on the proxy (whether by manual signature, typewriting, telegraphic transmission, or otherwise) by the member or authorized representative of the member.
(2) Proxies shall not be construed or used in lieu of a ballot. An association may use proxies if permitted or required by the bylaws of the association and if those proxies meet the requirements of this article, other laws, and the association's governing documents, but the association shall not be required to prepare or distribute proxies pursuant to this section.
(3) Any instruction given in a proxy issued for an election that directs the manner in which the proxyholder is to cast the vote shall be set forth on a separate page of the proxy that can be detached and given to the proxyholder to retain. The proxyholder shall cast the member's vote by secret ballot. The proxy may be revoked by the member prior to the receipt of the ballot by the inspector of elections as described in Section 7613 of the Corporations Code.
************************************************** *********
(e) Ballots and two preaddressed envelopes with instructions on how to return ballots shall be mailed by first-class mail or delivered by the association to every member not less than 30 days prior to the deadline for voting. In order to preserve confidentiality, a voter may not be identified by name, address, or lot, parcel, or unit number on the ballot.

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FROM RMA ELECTION RULES:
Article 7 PROXIES
7.1 Proxies Are Not Ballots. As defined in Corporations Code section 5069, “proxy” means a written authorization signed by a member or the member’s attorney-in-fact giving another person or persons power to vote on behalf of such member. As provided in Civil Code section 1363.03(d)(2), proxies are not ballots and are not valid as votes in any election or vote conducted by the association. In any election or vote of the members conducted by the association, only official ballots issued by the association shall be counted as votes.
7.2 Form of Proxy. To be valid, every proxy must comply with the provisions of the Bylaws, including Article IV, Section 6, and must comply with the requirements of Civil Code section 1363.03(d), which requires that any instructions in a proxy directing the proxy holder how to vote must be on a separate page of the proxy which is to be detached and retained by the proxy holder. In exercising the proxy, the proxy holder will vote by secret ballot; accordingly, neither the Association, the Board, nor any inspector of election shall have any responsibility or liability concerning how a proxy holder actually votes.

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Davis-Stirling.com, the #1 resource for California's condominium associations, stock cooperatives, gated communities and community associations, including the Davis-Stirling Act, case law, policies and procedures, forms, mediation and other useful re (an HOA law firm’s site) describes the process thusly:

Form of Proxy. Generally, proxies must be directed proxies. If proxies are used, they must now be on 2 pages--the first is the authorizing language giving the proxyholder the power to vote, the second page contains the instructions on how the proxyholder is to vote on each issue, which is retained by the proxyholder. Civil Code §1363.03(d)(3) Once a proxyholder registers at the membership meeting, the person is given a ballot. The Inspector of Election keeps the authorizing portion of the proxy and returns to the proxyholder the instructions on how the proxyholder is to vote the ballot. The proxyholder then goes off and votes the ballot in secret.

QUESTION: Our association adopted new election rules as required by the Davis-Stirling Act which mandates secret ballots. Are owners allowed to collect ballots from other owners, mark their ballots, and mail or deliver them to the Inspectors of Election?

ANSWER: No. Although owners may solicit proxies, it is improper to solicit ballots, to mark other owners' ballots, or to engage in electioneering when a voter is casting a ballot.

[Zebra Top]

Wilbur, there is no doubt in my mind you knew just what you were doing when you crafted the language for the proxy. What I wonder/ed is did the member signing the proxy realize the ramifications. Again, they were signing for motions to be voted for in a Special Election not the Annual Membership Meeting.

Another question I have is, if the FOC was not its own separate Special Election held in conjuction with the Annual Membership Meeting, why wasn't the Bylaw Amendment included with the other business on that ballot. Why did we have separate ballots?

[Wilbur]

You would have to ask Dick that question, Z. As he has stated many times, they, not we, are "running this election." They decided what the ballots would look like, they have made up their own rules on the fly and ignored the formal rules. We have asked many times to discuss such details and avoid conflicts and confusion. And we have been thumbed off every time. But it did make sense to make them separate ballots because the proxies were only authorized to be voted on the FOC ballot and not the director ballot.

The annual meeting became the meeting at which the proxy language those folks knowingly signed was effective. RMA wanted it that way, it was their idea. People knew they were signing a proxy which authorized the proxy holder to vote on their behalf and vote on motions at the meeting where the proxies' and FOC's fate would be decided. I had to do what I did to prevent those voters from being disenfranchised. They had the right to vote at that meeting and RMA was trying to pretend they didn't exist.

I'm sorry that my expression of frustration and my dogged refusal to let them get away with any more nonsense has upset you. but that frustration has a basis in reality. The arrogant disregard of members' rights has to stop. "Because I said so" is reserved to parents' use alone.

[Maximus]

Originally Posted by Zebra Top

Wilbur, there is no doubt in my mind you knew just what you were doing when you crafted the language for the proxy.

I wouldn't be so sure of that Zebra. After reading Wilbur's post, I see that the Battin bill and Article 7 of the RMA Election Rules essentially says that a proxy cannot override a ballot. 1363,03(d)(1)(B)(2) states, "Proxies shall not be construed or used in lieu of a ballot." Yet that is exactly what the proxy which was signed by the membership stated could occur. I think that would be a loser if FOC pushed it, which is why they won't now.

I am looking around for the actual proxy language which was attached on a separate post, to read exactly what it says. The rule seems clear to me.

Perhaps this is where RMA counsel has opined (according to Wilbur) that a blank ballot received overrides a proxy. Not sure though because I haven't seen the opinion.