Special meeting of Owners question

Hi! Our property manager requested the Board to have a special owners meeting and the president agreed. The purpose of the meeting is to amend our articles to conform with current FHA regulations. Although this change can be affected via a mail-in ballot by owners, our property manager is continuing to push for the special meeting and the president has not responded to my request to handle the matter via mail-in ballot. We have 3 Board Directors and one recently resigned, leaving myself and our president. I suspect that our property manager, who is also an owner, has an ulterior motive in wanting a special owners meeting and that he may try to call a vote to appoint a Director that he can control, thereby circumventing the current Board. My question is: Should he attempt to do that, would I be able to call the motion "out of order" and stop it? My reference is the Texas Uniform Condominium Act, Sec. 82.103 and Sec. 82.102. Here's a link to view this: http://www.statutes.legis.state.tx.us/docs/PR/pdf/PR.82.pdf
(I also made this an attachement)
Our by-laws, declaration and articles do not conflict with the Act, and the Act states it shall rule when there is no conflict. The Act, in it's entirety, was added to our articles as a recorded amendment dated 1995.
All responses to this request are appreciated

Unless Texas is very different, property managers may not make motions, only directors may.

If your board has the authority to appoint a new director, rather than having one elected by the members, it seems to me that you should do it at a regular meeting of the board, not at a meeting of the owners (members).

27 or so years ago, our association hired a homeowner as the PM - it was a huge mistake that we rectified 4 months ago. We are still digging our way out of the problems she caused and will be for some time to come. It was nothing less than a constant conflict of interest, and a big financial blunder. My advise is to fire that PM as soon as possible and either hire an outside PM or do it yourselves.

Our CCRs provide that if a director resigns, the replacement is appointed by the board to serve the remainder of the term. Check you CCRs to see if this matter is addressed there.

Thanks for your responses so far! To clarify, there is most definitely a conflict of interest with our PM being an owner, which can be rectified by 2 Board Directors in agreement to terminate the contract. Our president called the special meeting, being influenced by the PM to do so. President has not respnded to my request to make the FHA change by mail-in ballot. Our docs, nor TUCA, designate email as valid for votes. As an owner, I believe that the pm could make a motion in an owner's meeting (not a board meeting), but in my interpretation of our docs and TUCA, the powers of the association are carried out "by and through the Board", so I think that I would be correct in calling any motion to vote for a replacement director that might take place in the upcoming owners meeting as "out of order" citing Sec. 82.102 and Sec. 82.103 of TUCA. That is really my question. I would like to get the president to agree to a replacment director (see note to John)prior to the upcoming meeting and also to cancel the meeting itself by making the articles change by mail-in vote as allowed by TUCA, but he is avoiding action stating he is too busy at work. Note to John: our situation is much as you describe yours was. I am determined to rectify it, but I need Board directors with guts to do so. One more thing, the pm was instructed by myself and the president to send out a board vacancy notice to owners. He has not done so. Owners do not know there is a board vacancy. The pm refuses to give me emails of owners so that he can be the sole source of communication with owners. I have addresses and am considering sending the vacancy notice through U.S. mail. I want owners to be aware so they can volunteer to fill the vacancy. What do you think of that tactic?

Lauren,

I agree our situations sound very similar - I understand your problems. I also agree that you will need board members to support you.

In my case, I joined our board in mid-April. After I joined, we had an even number of board members (8, should be 9) and I had 50% of the board on my side (including myself) - the other 50% were our former PMs best friends (big surprise, I'm sure). I couldn't attack the PM, I had to take a different approach if I intended to get anywhere. I've owned a tax accounting firm for closing in on 40 years. So I was able to use my experience and reputation to convince the remaining board members that it didn't make sense fiscally, considering how much we were paying the PM and what little return we were getting. In fact, we were very near bankruptcy and her solution was to draw down our reserve accounts. (I made sure to explain the horrors of HOA bankruptcy to the rest of the board). Even the PMs buddies opened their eyes. Once we eliminated the PM position, the rest of her deadwood-board-member friends resigned. Yeah we were left with a short board for a while, but I now have an excellent board beside me. One thing going for us was our membership hated and distrusted the PM - I was a hero when I fired her - people are still thanking me.

The lack of awareness among your membership is certainly of concern. If they are not made aware of the vacancy, any director chosen, regardless of their intentions / performance, will be considered suspect and so will the rest of the board. I agree you need to get the word out. Sending notice by mail or even hand-delivering them is a fine approach. I would keep the mudslinging out of anything you put in writing, but I'd also point out that YOU are sending the notice to keep the members informed so THEY can have a say in the affairs of THEIR association - take the high road, but benefit from it anyway you can. It also wouldn't hurt to recruit any neighbors whom you know and trust as candidates. If you know what is bugging your membership, stand up against it - let them know you are on their side. If the membership is indifferent, talk up the problems then give them the solution.

We still have a vacancy on our board. I've re-established our Nominating Committee (long absent), and refuse to consider any potential members until the committee has a chance to get the word out and recruit some candidates (the board appoints this board member as it is a replacement position) - I don't want the appearance of any improprieties - I'd lose all the ground we gained. Of all the changes we've made - this one hits home strong with a lot of our members.

I realize your back is to the wall, but you cannot have a PM that refuses instructions by the board. YOU are the boss - they the employee. Ours learned that lesson the hard way.

Good luck. Dont' get frustrated, it's well worth it when pull it off.

Thank you all so much. Your experience and direction is appreciated. Perhaps you have some thoughts on the following: The memo to owners for a special owners meeting signed by the president (but written by the pm) is very loosely written; stating items to be considered are FHA changes, changes to declaration and rules due to the last Texas legislative session, changes to bylaws, and "other business before the Association". I forced the issues to be specifically clarified citing 82.007 and sent to owners as TUCA dictates with 10days prior notice. The pm conceded that bylaws could not be changed without 30 days notice (pursuant to our bylaws) but emailed a postponement of the meeting and attached the resolution to change the articles for the FHA only. So, if I cannot get the president to change the meeting to a mail-in ballot AND if anyone brings up business other than the FHA change, what verbage would you all suggest after I call it "out of order"?

I agree with Susan. Only business that is in the notice of the special meeting should be on the agenda. If this PM has a "personal agenda" any motions they made would be out of order if they do not relate directly to the subject matter of the notice. All members of the association have a right and obligation to vote on anything that is brought up to vote on at a special meeting, and that is why it needs to be in the notice of the meeting.

Also, check yopur bylaws. The statutes that you referenced are very broad, and leave much up to the bylaws of individual HOAs.

I would check notice of special meetings of the members, Special Meetings of the members,(this is where you would get information on the subject matter on which are are voting needs to be in the notice of meeting) and also, check statute Sec.A82.070. MEETING AT WHICH AMENDMENTS MAY BE ADOPTED.

Lauren,

According to accepted parliamentary procedure, ie. Roberts Rules, ONLY motions related to the item(s) on the agenda for a special meeting may be discussed and voted on. Any other motion is irrelevant and out of order.

Sorry Bev. I meant 82.070 (not 82.007)- that IS the Sec. of TUCA that I referenced to force the change be submitted to all owners with 10 days advance of the special meeting

Sorry Bev. I meant 82.070 (not 82.007)- that IS the Sec. of TUCA that I referenced to force the change be submitted to all owners with 10 days advance of the special meeting