Q&A: Voting by Proxy

Q. At a regular monthly meeting of a seven-member HOA board where members present constitute a quorum, can one of the absent members give her proxy to one of the four attending members to vote on specific issues on the board’s agenda?

                      —Concerned Shareholder

A. “The short answer is no,” says attorney Peter Jagel of the Law Offices of Peter Jagel, P.C., based in Naperville. “A homeowners association is a not for profit corporation and is subject to the Illinois General Not For Profit Corporation Act (“Act”) (805 ILCS 105/101.1 et seq.). Section 108.05(d) of the Act states that “[n]o director may act by proxy on any matter.” Rarely do we have such a straightforward and definitive statement on any issue in the law.

“Having said that, the Act does provide alternatives to the use of a proxy by a board member. Section 108.15(c) of the Act states that board members may participate in board meetings remotely through the use of conference calls or other communications equipment as long as it allows all of the participants of the meeting to communicate with each other. Therefore, instead of giving a proxy to one of the attending board members, the board member that could not attend the meeting could arrange to participate by conference call. Any board member that participates at a board meeting through the use of the conference call, is counted toward a quorum and is considered to have attended the meeting.

“The use of this type of technology is becoming more and more prevalent and it is not at all unusual these days for board members to participate at board meetings through conference calls. Recognizing this trend and the convenience of conference calls, the legislature has recently passed similar laws related to notices, elections and meetings for both condominium associations (765 ILCS 605/18.8) and community associations (765 ILCS 160/1-85).

“Not being able to physically be present at a meeting should no longer prevent a board member from participating in that meeting. The use of technology allows greater access and involvement for board members and owners of associations and should be utilized to manage situations where proxies are not permitted or involvement is important.”

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