By Enrique Romero, NM Legal Aid
May an Acequia allow voting by proxy? If so, what are some concerns or issues that may come up regarding proxy voting?
The term “proxy” and “proxy voting” are terms used primarily in the context of corporate or business law. For example, a corporate shareholder may assign his or her voting power to a representative for the purposes of quorum and voting on an issue at a particular meeting that the shareholder cannot, or will not, attend in person. The assignment – which should be on a written proxy form to be valid – may direct the representative, or proxy, to vote a certain way on a given issue, or may simply direct the proxy to vote on behalf of the shareholder however the proxy feels is in the best interest of the shareholder. Even though a proxy form may appear like an absentee ballot because it may list the item or items up for vote, in corporate law the proxy is not likely considered a ballot because the proxy form is not the vote. Rather, the proxy is authorized to vote the shares at the meeting in whatever form or manner the actual voting takes place – written ballot, voice vote, etc.
The acequia statutes mention proxy voting and specifically allow it: “votes may be cast by written proxy.” The use of the term “proxy” in the acequia statutes is likely a result of the quasi-corporate nature of acequias. Some acequias refer to their members as “shareholders” and vote by shares on acequia matters. In any case, acequias are not private corporations and governance is not dictated by corporate law statutes. The use of proxies is allowed by the acequia statutes and the lack of any firm guidance as to their use allows acequias some flexibility to determine when and how they are used.
For example, acequias may use proxies to achieve quorum when it would otherwise be difficult or impossible to get members physically to show up to a meeting at which necessary business needs to be conducted. The use of proxies to achieve quorum is common in the corporate world. Along the same lines, proxies allow for participation when it is difficult or impossible for a member to attend a meeting. Participation by proxy is better than no participation at all, provided, of course, that the written proxy is valid and the member, having been informed of the particular issues to be discussed and voted on at the meeting, knowingly and willfully assigns his or her vote to the proxy.
That leads to some of the potential drawbacks to proxy voting. First, there is no substitute for in-person discussion and voting. A good turn-out at an acequia meeting makes issues at the meeting ripe for debate, leaves officers feeling like they had a meaningful discussion with their constituents, and gives officers a mandate to move forward with whatever outcome was decided by those in attendance. Regardless of how trusted the proxy is, it’s important to keep in mind that diversity in opinion is a cornerstone of democracy and there is no better advocate for his interest than the member himself. Other potential drawbacks are fraud or confusion about the appropriate form or use of written proxies. Both issues can easily be addressed in the acequia’s bylaws by providing the scope of a written proxy’s use and by requiring certain minimal information in order for a written proxy to be deemed valid. In my experience, fraud-by-proxy is very rare. Fraud is a serious allegation and an acequia that believes that someone is misrepresenting their status at a meeting should seek legal advice.
Acequias have a great deal of flexibility in terms of determining how proxies are used. Since there is little guidance in state law, as with other governance matters, proxy voting should absolutely be addressed in an acequia’s bylaws. We all know that the acequia statutes are silent on a number of issues related to how acequias should be governed – and that can be a good thing! Every acequia is unique and is a reflection of the community it serves, so let your bylaws show it!
As you are thinking about this issue, consider whether your acequia’s bylaws address proxy voting, and if so, whether your acequia has forms readily available for proxy voting. NMAA’s governance handbook has examples of proxy voting provisions and proxy vote forms. Call NMAA to receive a copy of the handbook and to discuss the best options for your acequia when it comes to proxy voting.