As busy volunteers, often with full-time jobs, families, and other commitments, community association board members may not be able to attend all meetings of the board. When this happens, particularly when an important vote is pending and the trustees are divided on the issue, a board member may wonder if they can authorize another board member to act as their proxy at the meeting. Such a practice is impermissible and/or inadvisable under the law and most governing documents.
The confusion arises because unit owners are often entitled to vote by proxy at meetings of the members. There is no statutory authority allowing trustees to vote by proxy at a board meeting. Trustees may only vote or otherwise participate in a board meeting when they are present in person or by conference telephone or other means of communication by which all persons participating in the meeting are able to hear each other. Trustee voting by proxy may also be inconsistent with the open meetings requirement of New Jersey law which requires that all meetings of the board except conference or working sessions at which no binding votes are to be taken, shall be open to attendance by all unit owners. This open meetings requirement intends that unit owners be entitled to observe the decision making of the board. Giving a proxy to another trustee would thwart these requirements.
More importantly, board members owe a fiduciary duty to the association. By giving their vote to another, a trustee may be breaching that duty. Similarly, a trustee who is not present at a meeting at which a matter is discussed has no opportunity to change their vote based on information learned during the discussion and this may also result in a breach of their fiduciary duty. Since the standard for board actions should be ensuring board policy is in the best interests of the Association, allowing trustees to vote by proxy may fall short of that standard.
If you would like to learn more about community association boards or if we can assist your community association, please contact Stark & Stark’s Community Associations group.