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QUESTION/ANSWER BY JOHN H. GETTINGER, ESQ.

Question:

We are not a homeowners association - we are a property owners Association (private - nonprofit). We collect a small fee to maintain gravel roads only. Our bylaws do not address voting for BOD by proxy or absentee vote. Can we incorporate one?

Answer:

Yes, you can amend your bylaws to include a provision permitting voting by proxy. You will need to review the amendment provision of your bylaws to determine what method is required - vote by the board of directors and/or members and the percentage of the board and/or members required to adopt the amendment. Notwithstanding this, you may already have the statutory right to vote by proxy without an amendment. For instance, pursuant to §609 (a)(1) of New York's Not-for-Profit Corporation Law ("NFPCL"), unless otherwise provided in the certificate of incorporation or the bylaws, "every member entitled to vote at a meeting of members or to express consent or dissent without a meeting may authorize another person or persons to act for him by proxy."

The question of whether you can amend your bylaws to include "absentee vote" is less clear. While I have seen bylaws in a homeowners association context which permit "mail-in ballots," I believe that such a procedure may not be legal. Pursuant to §613 of the NFPCL, whenever any corporate action is to be taken by vote of the members, such action must "be authorized by a majority of the votes cast at a meeting of members by the members entitled to vote thereon." As such, it would seem that either the member or his or her proxy must be physically present at the meeting.

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