Q&A: Possibility of Proxy Duplication

Q Two weeks prior to our annual condo election, the unit owners receive their proxies in the mail. However, a board member, who was up for re-election, obtained a proxy from the managing agent two weeks earlier than all the unit owners. I addressed this issue at the annual meeting. His reply was that he was going on vacation and that he only received one proxy from the manager. However, he was back from vacation before the meeting. Also, he submitted several proxies at the meeting. Should he have had access to a proxy before every other owner as he could have duplicated the proxy and used it to gather other proxies? There is no way to know.

Also, a unit owner attended the meeting and another unit owner (board member) submitted that unit owner’s proxy. Should these proxies have been allowed in the vote?

—Proxy Skeptic

A “There are generally two areas to review with regard to the use and validity of proxies—the operative document, under which the proxy is sought to be used; and any statute that may impact upon the issuance and use of proxies,” says Attorney Stephen J. Lehrman of the law firm of Lehrman, Kronick & Lehrman, LLP, in Manhattan. “If proxies are mentioned in the bylaws, then that is the document to look to for further information pertaining to their use and restrictions on their use. The Business Corporation Law (BCL) Chapter 35 et seq., deals with proxies but would not apply in this case since we are not involved with shareholders or shares. The only portion of the BCL that might impact on the use of the proxies in question is the eleven-month limitation to validity.

“With regard to the condo in question, we have not had an opportunity to see the condo declaration and/or the bylaws. Assuming, however, that they are more or less standard, they will provide for the issuance and use of proxies for the election of board members and/or other issues. As far as we can tell, there is no time limitation on the advance issuance of a proxy (except, possibly as set forth above, the eleven-month rule). A proxy is automatically revoked by the issuance of a later proxy so there would not seem to be any reason to object to a proxy being executed long before any election. If the person signing the proxy changes his mind, he can sign a new proxy or simply attend the meeting and vote in person, which act would automatically revoke his prior proxy.

“As far as the duplication of proxies is concerned, the proxies must be signed by the individual giving the proxy so it makes no difference how many proxies any person may have unless there is some claim of fraud or forgery. Lastly, again, there is no prohibition preventing a person attending a meeting from giving his or her proxy to another attendee since the issuer of the proxy can simply revoke the proxy at the meeting by voting in person.”

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