It’s about that time again...the temperatures rise and our residents head to cooler climates. As a result, this is the time of year when many associations run into issues with absentee ballots, achieving quorum, and meeting attendance in general.
As you know, since 2005 the Condominium Act at § 33-1250 (C) and the Planned Community statutes at § 33-1812(A) have prohibited condominiums and planned communities from allowing votes allocated to a unit or lot to be cast pursuant to a proxy (assuming the period of declarant control has expired). Instead, these associations must provide for votes to be cast in person and by absentee ballot, and may also provide for voting by “some other form of delivery.”
It’s important to remember that an absentee ballot must set forth each proposed action, provide a space to vote ‘for’ or ‘against’ each proposed action, specify the date and time for the ballot to be delivered in order to be counted (must be at least 7 days after the ballot is delivered to the owner) and can only be valid for one meeting or specified election.
The “other form of delivery” allows an association to use a ‘mail ballot,’ specifically authorized by the Arizona Nonprofit Corporation Act at A.R.S. §; 10-3708. The requirements for a written ballot by mail pursuant to A.R.S. § 10-3708 are nearly identical to the requirements for an absentee ballot. In addition to the absentee ballot requirements, a mailed solicitation for a written ballot (the cover letter) must indicate the number of ballots that must be returned to meet the quorum requirement and the percentage of approvals necessary to approve each matter other than election of directors. The cover letter must also specify the time by which a ballot must be delivered in order to be counted (must be at least 3 days after the date the ballot is delivered to the member). In the last few years many associations have also moved toward voting by other delivery methods such as email or online voting.
There have also been some relatively recent changes in the law that impact attendance at and participation in meetings. For example, in 2011 the Legislature made it clear that a quorum of the board of directors of an association is permitted to meet by telephone conference call if a speakerphone is available in the meeting room that allows board members and owners to hear all parties who are speaking during the meeting (for meetings after the expiration of the period of declarant control) (A.R.S. §§ 33-1248(D)(3) and 33-1804(D)(3)). This tool may be particularly helpful during the summer months when vacations are the norm. Don’t forget, however, that even if the board is participating in the meeting via telephone conference, a meeting agenda still must be available for any members who choose to attend the meeting in person (A.R.S. §§ 33-1248(D)(1) and 33-1804(D)(1)).
Finally, in 2011 the Legislature also clarified that, in addition to members’ meetings and meetings of the board, regularly scheduled committee meetings must also be open to all members. So, to the extent your association’s committees continue their ‘regularly scheduled’ meetings through the summer, those meetings must be open, even if attendance is at a minimum. More generally speaking, it is simply a good idea to remember that, even though attendance may be low at summer meetings, associations must still be sure to stay in step with statutory requirements.
Kellie J. Callahan
author
Copyright © 2012 Carpenter, Hazlewood, Delgado & Bolen, PLC All rights reserved.
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