|Legal Opinion: |
Text of Document: January 13, 1992
Your question is as follows: Is proxy voting by the board of mayor and aldermen allowed?
The answer is no. Although one would expect that question to have generated considerable litigation, I cannot find a single case in the United States specifically on point. However, the question of proxy voting in elections and on the part of members of political parties [which, in the absence of statute to the contrary are unincorporated associations. See 25 AmJur, Elections, sec. 116.] has arisen several times; the sweeping language in those cases strongly implies that proxy voting is generally prohibited in governments, corporations and associations unless it has been authorized under statute or by law. In particular, the import of language in the Tennessee Open Meetings Law implies that proxy voting would be looked upon with disfavor by the court, and language in the general law mayor-aldermanic charter appears to require personal voting by members of boards of mayors and aldermen of Tennessee municipalities operating under that charter.
Elections and Associations
In 29 C.J.S. Elections, sec. 201(1) it is said that:
Voting is generally held to be a personal act, which cannot be performed by an agent. While the legislature may have the power to extend to voters the right or privilege of voting by proxy, it will not be deemed to have done so in the absence of a clear provision to such effect, and in the absence of such provisions the courts will not enforce the common-law rule which regards voting as a nondelegable personal trust that cannot be exercised by proxy.
Similar language is found in 26 AmJur2d, Elections, sec. 235:
In the absence of a statute expressly authorizing voting by proxy, the courts will generally enforce the common law rule to the effect that voting in an election is a nondelegable personal trust that may not be exercised by proxy, although the legislature has the power to authorize voting by proxy at elections, it will not be deemed to have done so unless there is a clear statutory provision to that effect.
There are few cases cited in support of that encyclopedic law. Among the important ones is State ex rel. Green v. Holzmuller, 5 A2d. 251 (1939). There proxy votes could not be cast in a municipal election said the Superior Court of Delaware, on the ground that:
At the common law the right of a franchise conferred upon a member of a municipal corporation was considered as one in the nature of a personal trust committed to the judgment and discretion of the member as an individual, and was not delegable.
The petitioners had conceded that point, but argued that the municipal corporation had the right to change the common law rule by by-law. Not so, declared the Court. While the legislature could change the common law rule, the change would have to be accomplished in express language. The language in the city's charter that "The council shall make rules and regulations concerning the voting" were not be taken as an express grant of authority to authorized proxy voting. But in what is probably even more important in applying this case to the question of whether proxy voting is permissible among municipal legislative bodies is the Court's conclusion that the absence of such express authority indicates a legislative intent not to grant it:
The legislature may be supposed to have been entirely familiar with proxy voting. The privilege was conferred in express terms upon stockholders of private corporations by the First General Corporations Law and it has been preserved in every amendment thereto. No charter of any municipal corporation of this State has been called to our attention which permits voting by proxy at annual or general elections...it may be confidently said that such occurrence is most unusual. The ease with which by direct expression the power could have been conferred, argues strongly that the legislature did not intend to confer such power upon the City Council.
A statute in O Brien v. Fuller, et al., 39 A.2d 220 (1944), provided that party nominees and state delegates in state conventions from each county "shall elect" a county committee for their party. That language foreclosed proxy votes to elect the committee, declared the Court, because:
The statutory mandate under consideration is direct and concise: those to whom the duty of selecting a county committee is entrusted "shall elect" that committee. Voting is generally held to be a personal act which cannot be performed by an agent...
[Also see Friesen v. People ex rel. Fletcher, 192 P.2d 430 (Colorado)]
But the case that seems most instructive is Hart et al. v. Sheridan, 168 Misc. 386 (1938). That case involved, inter alia, the question of whether a proxy vote on a resolution by the Executive Committee of the Democratic County Committee of Queens County, New York, should be recognized. The New York Supreme Court, after pointing out that there were no rules of the Democratic County Committee for casting votes by proxy, and that "I think it is quite well settled that there is no common law right of voting in a corporation or a membership organization," absent "specific authorization," went on to say that:
The only case in which it is allowable, at common law, is by the peers of England, and that is said to be in virtue of special permission of the Kings. And it is possible that it might be delegated in some cases by the by-laws of a corporation, where express authority was given to make such by-laws, regulating the manner of voting. I am not aware of any other case in which the right was ever claimed; and the express power which is generally given to the stockholders of moneyed and other private corporations is opposed to the claims in this case, where there is no express or impled power contained in the act.
Those cases are probably applicable to governing bodies in general, and municipal governing bodies in particular. Their language appears to speak of a general common law prohibition against proxy votes. The common law prohibition can be removed, but only by express authority. The general law mayor aldermanic charter contains no provision permitting the board of mayor and alderman to vote by proxy. If we presume that the Tennessee General Assembly is familiar with proxy voting, as did the Court in Holzmuller, the fact that it is not provided for in the charter is instructive as to its intent not to confer such a privilege on the board. The General Assembly's familiarity with proxy voting in Tennessee is seen in its brief provision in the Tennessee Business Corporation Act, specifically in Tennessee Code Annotated, section 48-17-203, and its elaborate and detailed provision in the Tennessee Nonprofit Corporation Act, specifically Tennessee Code Annotated, section 48-57-205. However, on a personal note, I have been working for MTAS for going on ten years and have never seen a provision for proxy voting in any municipal charter.
The general law mayor-aldermanic charter itself appears to expressly foreclose proxy voting, at least with respect to ordinances. Section 6-2-102 provides that:
All ordinances shall be considered on two (2) separate days and may be passed by approval on both days by a majority of the members present...[Emphasis is mine.]
An absentee board member voting by proxy can hardly be said to be present within the plain meaning of that provision of the charter.
Section 6-3-108 provides that the among the duties of the board of mayor and aldermen is to "Elect or appoint such officers and department heads..." An application of the O Brien Court's conservative interpretation of the "shall elect" provision at issue in that case and the charter provision at issue in Holzmuller to that provision in the general law mayor-aldermanic charter stands for the proposition that board members' right and duty to make such elections and appointments are nondelegable.
A general barrier to proxy voting in Tennessee by municipal governing bodies is found in the Open Meetings Law found at Tennessee Code Annotated, section 8-44-101 et seq. Tennessee Code Annotated, section 8-44-104 provides that:
(a) The minutes of a meeting of any such governmental body shall be promptly and fully recorded, shall be open to public inspection, and shall include, but not be limited to, a record of persons present, all motions, proposals and resolutions offered, the results of any votes taken, and a record of individual votes in event of roll call.
(b) All votes of any such governmental body shall be by public vote or public ballot or public roll call. No secret votes, or secret ballots, or secret roll calls shall be allowed. As used in this chapter, "public vote" means a vote in which the "aye" faction vocally expresses it will in unison and in which the "nay" faction, subsequently expresses it will in unison.
In addition, Tennessee Code Annotated, section 8-44-104 provides that among the things that shall appear in minutes of municipal governing bodies is "the results of any votes taken, and a record of individual votes in event of roll call." [Emphasis is mine.]
Although nothing in those sections specifically prohibits proxy voting, their tenor suggests such a result. It is difficult to believe that the Tennessee General Assembly had in those provisions a mind to permit the casting of proxy votes. Their thrust, it seems to be, is to permit the public to see how members of a municipal governing body personally and individually stood on issues before the body. Proxy voting violates the spirit, if not the letter, of those provisions.
Here it is necessary to step backwards to the policy of the Open Meetings Law stated in Tennessee Code Annotated, section 8-44-101: "The General Assembly hereby declares it to be the policy of this state that the formation of public policy and decisions is public business and shall not be conducted in secret." The implications for that policy on proxy voting are unintentionally pointed out in Holzmuller. Although that case involved proxy voting by the electorate rather than an Open Meeting Law, the Court observed that:
Proxies, generally speaking, are not given without solicitation...It may be assumed that some, at least, of the forty two voters who cast their votes by proxy were solicited to do so by the respondent or his agents.
That observation applied to a municipal governing body points to the problem of the solicitation of proxy votes by members of such bodies. It is logical to assume that such solicitations will occur out of the public eye and that there is a great potential for such wholesale solicitations to lead to violations of the Open Meetings Law. The law is somewhat confused over how far a member of a governing body can go towards soliciting the individual votes of other members of the governing body without violating the Open Meetings Law, particularly Tennessee Code Annotated, section 8-44-102; even the Tennessee Attorney General has trouble figuring out where the line lies in that area. [See OAG 88-169.] Jackson v. Hensley, 715 S.W.2d 605 (Tenn. App. 1986) suggests that a member has considerable latitude in that respect. There, the Court found no violation of the Open Records Law when a commission, upon learning that their was a vacancy in the trustee's office, by phone and in person solicited their vote. But under the most generous view of the right of a member of a municipal governing body to solicit the votes of his fellow board members, proxy voting adds an element to such solicitation I suspect the courts would not tolerate: it permits a member of a governing body to be absent from a meeting where his vote is cast but for which he does not have to account in the eye of the public at the time the vote is cast. In the absence of proxy voting, he may be absent from the governing body because he does not want to cast his vote in the eye of the public (or for any other number of reasons), but his vote is absent with him.
I am convinced that proxy voting sits at least on the edge of the Open Meetings Law, and probably over it.
Needless to say, it is doubtful that a member of a municipal governing body holding a proxy vote is present for purposes of a quorum. Quorum requirements are generally mandatory, appear to require actual presence of members of the governing body, and actions taken in the absence of a quorum are generally void. [4 Mc Quillen, Municipal Corporations, sec. 13.27--13-34.]
If I can help you further in those or any other matter, please let me know.
Sidney D. Hemsley
Senior Law Consultant