Maine Alliance for Road Associations
The following words are the words of Attorney Mary Denison taken from a recent email to Betsy Connor Bowen in answer to questions from the MARA Board on the role of Proxy voting and Absentee Ballots under the Private Ways Statute, 23 M. R. S. §§3101 - 3104.
I have not consulted with John C, (fellow Attorney John Cunningham), but here is my opinion on proxies and absentee ballots:
Under the Private Ways Act, proxies and absentee voting are allowed, but not required. The law uses the word "may" and not the word "shall." Proxies differ from absentee voting in that the proxy gives discretion, unless it is specifically directed, to the person who is being asked to vote in another owner's stead to cast votes as they see fit. The absentee ballot is the owner's written decision on each agenda item presented in the Notice of the meeting. If a new agenda item comes up at the meeting, the proxy may be used, but the absentee voter must be polled to find out their vote on the new item. This is consistent with the language in 23 MRS Section 3101 (4).
If an Association is a non-profit corporation, Maine law requires that proxies be allowed unless they are specifically prohibited in the by-laws. It is my opinion that proxies can be helpful when it is difficult to get good attendance at an annual meeting. Proxies can be abused however, and I would caution any association against making significant increases in their budget by amending agenda items at the annual meeting without providing the full membership opportunity to vote on the increases.
In general, if proxies are to be used, a simple majority of those votes cast in person or by proxy at the annual meeting should be considered valid. Absentee ballots, if allowed, may also be counted but only for items that are on the agenda that was sent out 30 days in advance. Any new items require you to circle back to the absentee voters for their input.
The Maine Alliance for Road Associations