Use of a Proxy at Board Meetings
This question was recently presented to our office, “Can a board member use a proxy to vote on a matter at a board meeting?”
The use of a proxy by Owners at annual meetings to determine the election of directors to the board and during a special meeting to vote on a matter determined by the Owners is very common. Normally there is a provision in the Association’s Bylaws (Code of Regulations) which permits the Owners to vote “in person or by proxy”. Normally, quorum requirements in the Bylaws will also be determined by the number of Owners in attendance at a meeting, “in person or by proxy”. If an Owner cannot attend an annual or special meeting to cast his or her vote in person, the Owner has the option to provide for a proxy to vote on behalf of the Owner in his or her absence.
The use of a proxy by a board member is quite different. A board member does not have the right to use a proxy in the event he or she cannot attend a board meeting.
Ohio law provides for methods of holding a board meeting. The HOA statute, in O.R.C. §5312.04(D) provides, “the board may hold a meeting by any method of communication, including electronic or telephonic communication provided that each member of the board can hear or read in real time and participate and respond to every other member of the board.” Similarly, the condominium statute in O.R.C. §5311.08(A)(4)(b), provides, “A meeting of the board of directors may be held by any method of communication provided that each member of the board can hear, participate, and respond to every other member of the board.” The nonprofit statute, O.R.C. §1702, has no provision which would allow a board member to vote by proxy.
The intent of the statutes is that a board member be present at a meeting, even if not in person, and be able to hear or read in real time and respond to discussions with other board members during a meeting. The only exception to this requirement is if a board has a unanimous written vote without a meeting. Therefore, a board member cannot use a proxy to vote on a board matter.
Ms. Strohm has been practicing law since 2004 and is a principal of the firm Williams & Strohm, LLC. As a member of the Ohio and Columbus Bar Associations, she is admitted to practice in all Ohio courts and the Federal District Court for the Southern District of Ohio. Read Robin Strohm's full bio.