Maine Alliance for Road Associations - Voting Issues: non-payment of dues and absentee ballots

14 Jun 2013 7:53 PM

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Message # 1318510

Deleted user

I have 2 issues around voting. We voted into our by-laws about 2 years ago that we do not have absentee ballots as we have such a diverse group of owners and it would take forever to conduct business--over 70 properties, many without a residence, seasonal and year round owners, etc. On MARA website this appears acceptable, the way the Law is written doesn't sound clear on this. What are others doing? We do say we may have proxy voting but have never set up anything. With this year's changes we will address that at our annual meeting in July.

The second issue is we do not allow anyone to vote who is not paid up on their dues. This has been a long term by-law but we never used it much during the several years that we did not have dues but asked for donations as our only bill was winter sanding (the city does do some maintenance on our road but they required we pay for winter sanding--we now have maintenance work we need to address ourselves). Is it ok to have the by-law that someone cannot vote if their dues are not paid up?

Thank you very much.

14 Jun 2013 11:06 PM

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Reply # 1318558 on 1318510

Deleted user

I don't believe there is any provision in the law which would empower you to deprive an owner of his vote in the association. It's useful to conceive of a statutory road association as being similar to a town government; you are a member by virtue of your property lying within the association's jurisdiction -- you don't get a choice in the matter. But you get a vote in the affairs of the association. That vote can't be made dependent on paying your dues any more than your vote on town matters can be dependent on paying your taxes.

26 Jun 2013 7:49 PM

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Reply # 1327868 on 1318510

Deleted user

In theory I was agreeing with your idea except I knew that we included both votiing and holding office in our by-laws which we copied mostly verbatim from the sample by-laws for a statuatory road association shown as Appendix D to the manuals. The following line clearly indicates voting can be contingent on paying the assesment

. Property owners delinquent in the payment of their assessment lose their right to vote at the annual meeting or any special meeting called by the Board of Directors.

My understanding always has been that all of these various sample forms were thoroughly vetted by the various organizations who came together to write the manual to be in conformence with the road law. If this is not correct we need to know that. Thanks.

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Last modified: 26 Jun 2013 7:50 PM | Deleted user

26 Jun 2013 9:06 PM

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Reply # 1327918 on 1318510

Deleted user

Yes, I know it's in the sample bylaws, but I don't believe that there is any support in the Private Ways statute for such a provision. 23 MRSA 3101(4) grants a vote to each parcel; nowhere in the law does it provide for the suspension of a parcel's vote for any reason whatsoever. The Association's bylaws cannot supersede the statutory grant of a vote.

I believe any association that deprived a parcel of its vote for delinquency, or any other reason, would risk invalidating any action taken by a vote of the membership, if the result of the vote might have been altered by the suspended parcels votes.

There's also the structural problem that, if for some reason, all parcels became delinquent, the association would become incapable of operating, as no votes could be cast, even for the purpose of rescinding the bylaw which denies votes to delinquent parcels. And if all but one parcel became delinquent, the lone remaining parcel would hold the only vote, rendering the association a sort of dictatorship.

If the members of a statutory association have the power to adopt bylaws which remove a parcel's vote due to delinquency, which is not a power explicitly granted in statute, then logically they should also have the power to remove a parcel's vote for other reasons as well. Members could vote to adopt bylaws that deny a vote to parcels which contain a mobile home, or parcels where children reside, or maybe just the parcel owned by the local gadfly whom no one likes. It seems unlikely that the statute grants this power.

I wonder if the language in the sample bylaws is a holdover from a nonprofit corporation or deeded road association, whose governance is a matter of private contract, and which have pretty much unfettered latitude in crafting their bylaws.

I'd ask an attorney knowledgeable in road association law to specifically consider the validity and consequences of such a provision in a statutory road association. I'm very skeptical that it could possibly be valid.

27 Jun 2013 9:20 AM

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Reply # 1328351 on 1318510

Anonymous member

It is possible that the bylaws provision in question is from a sample bylaws not intended for an association formed under Maine statute. A voluntary or other mandatory road association may have such a provision in their by-laws if the members approve it. However, there is nothing in the statute that suggests that a statutory road association has the authority to deny voting rights to a non-paying member. And indeed, what the previous poster alludes to is the analogy between a town and a road association that has generally informed the private ways statute on forming a road association, and voting is a right that comes from owning a parcel abutting the road (or in the town).

27 Jun 2013 9:26 AM

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Reply # 1328364 on 1318510

Anonymous member

On absentee ballots, the purpose of that is to allow members to cast a vote even if they are not at the meeting. People whom the force of law requires to pay assessments ought to be able to vote even if they are not in attendance at a given meeting, just as absentees vote in government elections at all levels. Would it be so hard in the call to meeting to state that absentee ballots are available if requested?

03 Jul 2013 5:37 AM

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Reply # 1332261 on 1318510

Deleted user

Thank you, all, for your thoughts. I am going to recommend at our annual meeting that we change our by-laws to delete the non-payment of due=no vote rule. We have never had to enforce it but it could happen in the future.

On the issue of absentee ballots: the statue 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". So, if we allowed absentee voting and brought up an issue at the annual meeting and voted on it, we would have to poll the 55+ properties who did not attend the meeting. We would not be able to conduct/finalize business at the meeting. Our road is quite long with about 70 properties, many are just lots. Our by laws have stated we allow proxy voting but have not set up a mechanism for it. With the changes in the statues we will set up a process. Our annual meeting is coming up later this month.