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Subject: ARC Request and Special Meeting
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CourtneyS2
(Texas)

Posts:59


05/21/2021 6:18 PM  
Our board votes for the majority of things via email.

Should ARC request or any other vote be done so on email?

Recently a board member accused another Board member of audio recording without facts absolutely no proof during a closed meeting. Our MC called the member and told them one of the member felt they were recording. Well there are only three members. The MC told the member that HOA is like a business working for Shell and they can't record without disclosures.

I don't have any with voice recording as long as the person is present doing the recording.

Is it illegal for a person to record?
SheliaH
(Indiana)

Posts:4290


05/21/2021 8:29 PM  
Email is useful for following up on simple matters addressed during a regular board meeting, such as sending people copies of RFPs for review (discussion to be held during the next meeting), but for the most part, you should be holding open board meetings. There are several conference call platforms you can use where people can call and listen in and many of them are free (not just Zoom) - why isn't your board doing this? Double-check your documents. That should take care of the ARC issue - vote the request up or down during the call and then send a letter to the homeowner with your decision.

Regarding recordings, you may need to run this by your association attorney. In some states (like mine), you can record a conversation as long as one person knows of the recording. That may or may not be the case in yours - and even if it isn't, this stunt between your colleagues demonstrates why it's a good idea to have open meetings or at least conference calls for an executive session so everyone sees and hears what's going on.

Y'all need to get your act together, act like adults and figure out a way to hold your meetings properly. If you're going to use emails, come up with some policies that make sense. For example - in many cases, emails regarding association business could be considered official records and therefore must be preserved and given to homeowners upon request. Is anyone keeping copies of anything? Probably not.

No, that probably won't be in your documents - emails probably didn't exist when your community was established and even now, the law in many states is still catching up to technology. Have a sit-down with your association attorney and perhaps your association insurance for a lesson on preserving emails. There are various sites all over the web on email etiquette - it helps to understand that how you say certain things may or may not come back to bite you or the association in the behind, so a policy prohibiting threats, name-calling and what not would be useful.




CourtneyS2
(Texas)

Posts:59


05/21/2021 8:57 PM  
Thank you Sheila. Everything you stated is what our bored is experiencing. Members have disrespected one another through email and made threats. The sad part the MC is the problem as well.I highly doubt they keep records of anything to provide to residents. I had to continuously as for a copy of the by laws until the owner of the MC have them to me.

We're in a one party record state as well. I don't see why they can't voice record if they àre present. There shouldn't be anything to hide.

The President isn't allowed to act on her duties The PM and MC say that all Directors positions are the same meaning we only receive ARC request and minor changes to vote on like changing dead shrubs, or changing landscaper. Our MC wants to even pick our Landscaper.
AugustinD


Posts:1920


05/22/2021 6:50 AM  
From another thread by CourtneyS2, from a year ago:
750+ units
Single Family Homes
Development is 12+ years
elected to the Board by Association Members.

Posted By CourtneyS2 on 05/21/2021 6:18 PM
Our board votes for the majority of things via email.
Are these votes documented in the minutes of the next regular or special board meeting? If not, then I think the chances are high that this board is violating Texas Property Code 209, Section 209.0051 parts (c) and (h):
(c)
"Regular and special board meetings must be open to owners, subject to the right of the board to adjourn a board meeting and reconvene in closed executive session to consider actions involving personnel, pending or threatened litigation, contract negotiations, enforcement actions, confidential communications with the property owners' association's attorney, matters involving the invasion of privacy of individual owners, or matters that are to remain confidential by request of the affected parties and agreement of the board. Following an executive session, any decision made in the executive session must be summarized orally and placed in the minutes, in general terms, without breaching the privacy of individual owners, violating any privilege, or disclosing information that was to remain confidential at the request of the affected parties. The oral summary must include a general explanation of expenditures approved in executive session."

(h)
"Except as provided by this subsection, a board may take action outside of a meeting, including voting by electronic or telephonic means, without prior notice to owners under Subsection (e), if each board member is given a reasonable opportunity to express the board member's opinion to all other board members and to vote. Any action taken without notice to owners under Subsection (e) must be summarized orally, including an explanation of any known actual or estimated expenditures approved at the meeting, and documented in the minutes of the next regular or special board meeting. The board may not, unless done in an open meeting for which prior notice was given to owners under Subsection (e), consider or vote on:

(1) fines;

(2) damage assessments;

(3) initiation of foreclosure actions;

(4) initiation of enforcement actions, excluding temporary restraining orders or violations involving a threat to health or safety;

(5) increases in assessments;

(6) levying of special assessments;

(7) appeals from a denial of architectural control approval;

(8) a suspension of a right of a particular owner before the owner has an opportunity to attend a board meeting to present the owner's position, including any defense, on the issue;

(9) lending or borrowing money;

(10) the adoption or amendment of a dedicatory instrument;

(11) the approval of an annual budget or the approval of an amendment of an annual budget that increases the budget by more than 10 percent;

(12) the sale or purchase of real property;

(13) the filling of a vacancy on the board;

(14) the construction of capital improvements other than the repair, replacement, or enhancement of existing capital improvements; or

(15) the election of an officer."

See https://statutes.capitol.texas.gov/Docs/PR/htm/PR.209.htm

See also:
Texas Nonprofit Corporation Act Sec. 22.220. ACTION WITHOUT MEETING OF DIRECTORS OR COMMITTEE. "(a) The certificate of formation or bylaws of a corporation may provide that an action required by this chapter to be taken at a meeting of the corporation's directors or an action that may be taken at a meeting of the directors or a committee may be taken without a meeting if a written consent, stating the action to be taken, is signed by the number of directors or committee members necessary to take that action at a meeting at which all of the directors or committee members are present and voting. The consent must state the date of each director's or committee member's signature.

(b) Prompt notice of the taking of an action by directors or a committee without a meeting by less than unanimous written consent shall be given to each director or committee member who did not consent in writing to the action."


If your HOA's certificate of formation or bylaws do not have such a provision, then voting by email is a violation of this Texas statute.

See https://statutes.capitol.texas.gov/Docs/BO/htm/BO.22.htm



Recently a [director] accused another [director] of audio recording without facts absolutely no proof during a closed meeting. Our MC called the member and told them one of the member felt they were recording. Well there are only three members. The MC told the [director] that HOA is like a business working for Shell and they can't record without disclosures.

I don't have any with voice recording as long as the person is present doing the recording.

Is it illegal for a person to record?
Sounds like you googled. I came up with the same answer: Texas is a one-party consent state, which means that you only need consent from one person to record a conversation in which that person is participating. Texas Penal Code 16.02(c)(4). See also the chatter at: https://www.justanswer.com/real-estate-law/5xkpv-legal-hoa-board-forbid-recording-hoa.html

The bigger problem is you have a manager who is not interested in what the law is.
LetA
(Nevada)

Posts:1466


05/22/2021 12:18 PM  
Depends on what the ARC request is. Typically ARC request are typical, pools, sheds, awning, patio cover, pergola etc. These already have a minimum standard of construction, and the ARC request is just a typical rubber stamp of approval. It is when the ARC request skews off the tangent when the BOD's need to pow wow and have a discussion. No I don't feel these should wait until the next scheduled board meeting. You are up against someones building schedule and time is off the essence.. These ARC request can easily be completed my group text and emails.
BenA2
(Texas)

Posts:1108


05/22/2021 4:54 PM  
Texas is a one party consent state for audio recordings which means the member can legally record any meeting he is present at. If it in fact was a company like Shell they could still record legally, but they may be breaking Shell's rules.
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