Maine Alliance for Road Associations
Need clarification. It is my understanding that items to be voted on at the members meeting must be on the warrant that is sent with the notice of meeting. For example, " To see if the members will approve an increase in the road assessment from $_______ to $_______.
In other words if a proposed item is not on the warrant, any vote would be advisory in nature...non-binding. In other words, "new business", a proposal raised from the floor if taken to a vote, would not be required to be acted upon by the board.
Am I correct and if so is there a reference for same?
The "Warrant" is the notarized document that sets the time, place, and agenda for the initial call to meeting for the formation of a statutory road association. Absentee voting is permitted at the initial meeting so all that follows should apply whether the meeting you refer to is an initial or subsequent meeting.
Subsequent meetings may be called by the commissioner or board appointed at the initial meeting. (§3101, subsec 2) The subsequent call to meeting should be done in the same manner but there is no need for a notarized "Warrant". All items to be voted should be included in the agenda sent with the notice of meeting. Items are decided by majority vote of owners present and voting in person or by written proxy or absentee ballot. All owners must be sent the outcome of all items voted within 30 days. (§3101, subsec 5) Any items raised and voted at the meeting but not on the agenda need to be sent to the members voting by absentee ballot for a vote if those votes could change the outcome of the vote. (§3101, subsec 4)
Regarding your second paragraph, I believe a proposal raised from the floor, taken to a vote and approved by a majority of those voting in person or by written proxy or absentee ballot would be binding for action by the commissioner or board as indicated in §3101, subsec 4.
Sandy, you cite 23 MRSA 3101 paragraph 4, which also states, "Owners voting by absentee ballot must be polled on all voting items that were not included in the agenda and the final tally must be reported to the owners."
I would take that to mean that if an issue that was not on the agenda is raised from the floor, anyone who voted by absentee ballot must be notified and given a chance to vote. But what about members who didn't bother to either show up for the meeting or vote by absentee ballot? Is it assumed they didn't care to vote? But what if the issue that was not on the agenda is something they would have wanted to vote on? My thought is that if it's something minor, for example a small, non-controversial expenditure to come out of the contingent account, that it would probably be okay. (Handling of contingent expenditures is something you might want to address in your bylaws.) But if it's something major, for example if the road association has never had liability insurance and someone proposes obtaining coverage at a cost that will require increasing the dues above what was proposed in the agenda, then everyone should be notified and given a chance to vote on it. Your thoughts, Sandy?
For clarification, my nickname is "Sandy".
You raise an excellent point, Roberta. I am not an attorney, and therefore can only offer an opinion based upon my experience and reading of the Private Ways Statute (PWS). No action should be taken on my opinion without advice from a qualified attorney. The following is offered for your consideration.
I agree with your assumption that members who didn’t come to the meeting and didn’t vote by written proxy or absentee ballot tacitly did not care to vote on the agenda presented in the call to meeting. If there is a change in the agenda from the floor at the meeting and a majority vote of approval for the item, then those voting absentee must be polled as necessary to decide the vote as noted above.
To your point, as commissioner/moderator of the meeting, I would request a vote of the Board to decide if the item voted was a significant enough change in the agenda that all owners should be notified and given a chance to vote. If the Board voted not to notify absent owners, then in reporting the final tally to all owners, it would still be important to call attention to the items voted that were not on the original agenda and ask for owner response, say, within 30 days of notification. Hearing any objection to the voted items, I would submit the vote on the items in question to all owners for approval.
The above scenario offers an "owner friendly" solution. However, I believe the PWS supports a "hard line" stance by the member owners who choose to exercise their right to vote at the meeting. Section 3101, subsec 4, gives owners voting in person, by proxy or absentee ballot the right to raise issues and vote to approve them without approval of owners who chose not to participate in voting. I believe it would be an uphill climb for disgruntled owners not at the meeting with no absentee ballot to overturn an item so voted. As I see it, they would need a majority vote at a subsequent duly called meeting to overturn the previous legitimate but disputed vote on the item. The "hard line" stance of the PWS favors active participation by all owners. Which is as it should be!
I am interested in other comments.
Regarding voting by proxy, I think it would make a big difference if the non-attending member provided a general proxy (to vote in his/her stead on all association matters identified on the warrant or the meeting agenda) vs. a specific proxy (to vote in his/her stead for or against a specific issue before the Association identified on the warrant or the meeting agenda).
The following sequence of responses is an exchange that has taken place over the last 24 hours among MARA Board Members, Roberta Manter, Jim Bunting, and myself, arising from the above post entitled, "Meeting Warrant".
Roberta: Sandy, your last response raises more questions. Do the statutes REQUIRE that absentee voting and/or proxy voting be provided? 23 MRS 3101, paragraph 4 says, “The call to a meeting MAY state that an owner may elect in writing to appoint another owner to vote in the owner's stead.” (Emphasis added.) I would take that to mean that a road association is not obligated to allow proxy voting, as the statute does not say “must.”
With small road associations, say a dozen or so members, I can see that proxy voting could be advantageous and manageable. But the bigger the road association, the more cumbersome this could become. Some road associations have 50 to 75 or more members.
But then the statute goes on to say, “Owners voting by absentee ballot must be polled on all voting items that were not included in the agenda and the final tally must be reported to the owners.” Here it doesn’t say either “may” or “must” in relation to manner of voting. So is a road association obligated to provide absentee ballots, or that optional?
Sandy: I believe the word “may” in your first paragraph refers to placement of permission for proxy voting in the call to a meeting, not whether this form of voting can be allowed or disallowed by the association. I believe 23 MRS §3101, subsection 5 gives all owners the right to three types of voting. The second sentence states: “By a majority vote of the owners present and voting in person or by written proxy or absentee ballot, the owners may determine what repairs and maintenance are necessary and the materials to be furnished or the amount of money to be paid by each owner… “ The first part of the sentence, beginning with "By" and ending with a comma after "ballot", is a dependent clause that defines how the subject of the sentence, "the owners", may choose to vote. I believe paragraph 5 gives the owners (not the association, the presiding officer, or the Board of Directors) the right to choose among three voting methods. I believe restriction of these three voting methods might be possible, but would need to be decided by a majority vote of the owners. If the restriction to be voted was not included in the agenda and on the proxy/absentee ballot sent out with the call of meeting, absentee members would need to be polled for the majority vote to approve and a final tally reported to the owners. The approved voting restriction might then be used to decide issues before the membership. I am not certain of the above and it is not clear to me if an association is “obligated” to provide ballots. I would be interested to hear an opinion from an attorney.
Roberta: I respect your right to your opinion, but I HOPE you are wrong. I think it would be an absolute nightmare for large road associations to provide all three voting options to their members. In other matters we have been advised to pattern our procedures on the way towns handle them. Town Annual Meetings do not send absentee ballots to all town residents, nor do they notify all residents that they can vote by proxy. I eagerly await hearing what the attorneys will say on this topic!
Jim: The statute’s provisions in Sections 3101-4 and 3101-5 are not a model of clarity. I think 3101-4 (which is, after all, titled “Voting”), is more germane to the question of whether a road association is required to provide for proxy voting and/or voting by absentee ballot than is 3101-5, which (obviously) comes later in the statute. Section 3101-4 notes that an owner MAY (my emphasis) elect to appoint in writing, another owner to represent him or her at the meeting – that is, appoint a proxy. The sentence that follows in 3101-4 is the one we’re discussing – on absentee ballots. As it immediately follows the discretionary proxy vote sentence, it seems that, if absentee balloting were to be mandatory, the legislature would have said so. As there is no explicit requirement in that sentence (or any other provision of the statute) for the association to implement absentee voting, I would think it to be optional. The association can – but need not – provide for absentee voting.
Thank you, everyone, for your thoughtful exchange on this!
One concern that I still have is that making things too cumbersome will interfere with the successful operation of road associations. One of the reasons the original (non-profit) road association on my daughter's road failed was that their bylaws required so many members be present at annual meeting in order to have a quorum that for the last couple of years they didn't come close to the critical number and therefore were not able to do anything. They even tried sending out absentee ballots, but still got a poor response, so with only a dozen members out of 35 paying, the association folded. They then formed a statutory association with a lower quorum requirement, which has done so well for the past nine years that they now have only 2 unpaid members out of 55. (Several lots have been subdivided.) I think that says something about the satisfaction of the membership in how the association is operating based on the votes of those who show up. If road associations are running effectively on just the votes of those who care enough to show up, and no one else is objecting to the results of the vote that are sent out afterwards, why risk complicating matters? We hold our annual meeting in mid-summer, as that's when we have the most members present, and it can already be a challenge to get contractors to fit us into their schedule to do road repairs between then and the end of summer. If we have to delay longer to get absentee ballots back on matters raised from the floor, we may be faced with a choice between missing that window of opportunity entirely, or holding our annual meeting earlier when fewer people can be there in person.
For clarification of the the need of the association to provide members proxy voting privileges and absentee ballots, please read Attorney Mary Denison's opinion posted July 21, 2021.
The Maine Alliance for Road Associations