We’re caught in a trap
We can’t reach quorum
Because it’s two-thirds, baby
Why can’t you see
What you’re doing to me
When you don’t give me your proxy?
– Elvis President
It’s a common problem for just about every board of directors – voter apathy and lack of trust will cause association members to refuse to show up at member meetings, vote, or give proxies to the board to help establish a quorum and vote on their behalf. Depending on the particular provisions in the governing documents regarding quorum, this can be a significant wrench in the gears of the association’s functions.
Some boards of directors have questioned whether it would be appropriate to adopt a rule or amend the bylaws to require association members to vote, along with fines for not voting. In short, this is a bad idea. In fact, this would likely be found to violate members’ Constitutional rights to free speech, because they can claim they are making a statement by choosing not to participate. Could you imagine the uproar, for example, if the federal or state government adopted a law requiring everyone to vote? To be clear, we are all for encouraging political engagement, but this would be a step too far.
On the other hand, some boards have adopted a “carrot” approach (as opposed to the “stick” described above), where attendees/voters at meetings will be entered to win small prizes paid for with association funds. Or there may be (non-alcoholic) drinks and appetizers served at the meeting, giving it more of a party atmosphere. While we would not reject this kind of approach out of hand, before taking this approach, a board of directors should carefully consider this with the assistance of association legal counsel to ensure that the board is not overstepping its authority under state law and the governing documents. There could be some legal landmines.
So, what else can be done? Work with your legal counsel to develop a complete voting strategy, which may include the following:
- If allowed by your governing documents, hold a 90-day action vote by ballot without a meeting as allowed under the Nonprofit Corporation Act (note that we generally would not recommend this for board elections, however)
- Going door-to-door, politely requesting members who have not voted to cast their votes or, in the alternative, requesting the members execute a proxy for the board to vote on the member’s behalf
- Including reminders to vote in association newsletters / websites / social media
A director’s job can be thankless and a source of endless frustration when the owners don’t seem to be interested in participating at the most basic levels. However, our experience has shown that if a board is energized and works together with its managing agent and legal counsel, a change can be made for the better. For example, many associations would benefit greatly from a first step of targeting the existing quorum and amendment provisions of their governing documents with a vote to amend those provisions.
