Maine Alliance for Road Associations
The statute refers to "... a majority of owners present and voting in person or by written proxy or absentee ballot,..."
Until last year, we routinely sent absentee ballots to each owner prior to our Annual Meeting, but found two years ago, that for one rather contentious item, discussion at the meeting of that item was rendered irrelevant, because the outcome of the vote was already decided via the absentee ballots. It was likely that had the vote been held after discussion, the outcome would have been different.
We have roughly 80 members, most of whom do not come to the Annual Meetings, even though the meetings are held at a time when many, if not most, could come. We tend to find that most of the time, absentee ballots routinely yield affirmative votes for all items provided. An example of this is that we recently voted to overturn a vote that had been made just a few years before.
So, last year we experimented and did not send absentee ballots, allowing a thorough discussion prior to voting, which seemed to work well. Recently, however, someone asked if they had the right to an absentee ballot or proxy. We don't object to proxies for those that truly care, but would prefer the majority of those voting to benefit from the discussion.
The question is, although the statute mentions proxies or absentee ballots, does it mandate them? And, if so, does anyone have a solution that allows discussion first?
I believe a member would be justified in objecting to not being given a means to participate in a road association meeting as an absentee. When I send out a Notice of Meeting 30 days prior to the meeting date, I include a proposed budget and agenda which lists all the items to be voted upon. I underline the items that can be voted by absentee ballot and include a proxy/absentee ballot containing the underlined items for member use in voting. The ballot gives an absentee the choice of voting either absentee or by assigning a proxy.
I'm just thinking about how this might work for a particularly contentious issue where full member participation in the discussion is critical for a successful result. Statutes 3101 and 3103 use the phrase "... may by a majority vote of owners present and voting in person or by written proxy or absentee ballot authorize...". Voting possibilities are joined by the conjunction "or" suggesting all of these three mechanisms are acceptable (and possible).
For a meeting involving contentious issues, as presiding officer, perhaps I could withhold the option to vote with the absentee ballot and specify voting "in person or by proxy only" so that discussion before the vote could include absentee members.
I am posting copies of our template for an agenda and a proxy/absentee ballot to help clarify my previous post.
I see that his first question was answered but not the second one.
My proposed solution to the above question is based on the structure of the following sentence found in 23 MRS 3101, paragraph 5.
"By a majority vote of the owners present and voting in person or by written proxy or absentee ballot, the owners may determine what repairs and maintenance are necessary..."
The first part of the sentence, beginning with "By" and ending with a comma after "ballot", is a dependent clause that defines how the subject of the sentence, "the owners", may choose to vote. I believe paragraph 5 gives the owners (not the presiding officer or the Board of Directors) the right to choose among three voting methods. Owners have two primary choices: to vote in person or absentee. Since the choices are up to the owners, the following scenario seems possible:
If the presiding officer prefers the voting to be "in person" for annual meetings or a specific meeting or issue, he (she) would submit the restriction of voting choices to a majority vote of the owners. If the item to be voted was not included in the agenda and on the proxy/absentee ballot sent out with the call of meeting, absentee members would need to be polled for the majority vote to approve and a final tally reported to the owners. The approved voting restriction might then be used to decide issues before the membership.
The above scenario requires that the road association be formed according to 23 MRS 3101, Call of Meetings.
I am not certain of my conclusions and would like to hear from other members.
Andrew, I tend to concur with your conclusions, and our association has operated as you have described.
Therefore, Emily, to answer your question if the statute mandates voting proxy or absentee, I would say based off Andrew's description, yes. The owners MUST be given the option and cannot be excluded if they are not present. Meaning, if you provide a ballot/proxy ahead of time and they do not show up to the meeting or vote absentee/proxy than they have been given the options, but still choose not to participate which is fine. However, if an issue arises that requires discussion, was not on the agenda or different than what was sent out ahead of time, then they must be given the option to vote on that item. Following the meeting an additional absentee ballot should be sent out to those who didn't get a chance to vote. The final tally for said item can only be calculated once all responses are in and then reported upon what the final outcome was to all members.
The Maine Alliance for Road Associations