Dismissal of an ACC Member

Dismissal of an ACC member
A question of discussion has been made in a recent HOA meeting. The “Current” board which has been in place for 10 months has a few members on it that the ACC refuses to talk to for reasons of trust. It was said in a recent POA meeting that the board member who has the least trust would meet with the whole ACC team to discuss a “New and improved” way to report violations and new building submissions thru an “Online” form process. This person made a motion herself and the board 5-0 approved it. Now comes the interesting part. This went around and around about the ACC team now wanting to meet and it was suggested that “If they didn’t want to meet they should resign or be removed” Yep, full on get them out of there because they won’t talk to one member of the board who they don’t trust! And NO, we still live in this reality….I think…..
Here is a paragraph of the CC&R’s that shows how an ACC person is replaced, there is no place in the entire 425 pages that says that the HOA board can remove or appoint an ACC member no does it state that they operate at the pleasure of the HOA president or board. We have a lot of different “Opinions” on the subject of removal….to say the least…….
To me is seems that OUR ACC is in full control of who they want as a replacement, then they run that person pas the HOA board for approval.

The issue came up about the WORD “dismissal” 3rd line down. Who does the dismissal? And for what reasons? So we do a deeeeep dive now….to me, again being (really stupid), it seems that the orig ACC was appointed, no term limits so they did it till death or they resigned. When that happened the ACC remaining found another person to jump into the fire…There has NEVER been any talk about terminating or “Dismissing” an ACC person in 24 years! Never, we appreciated all the hard work they did keeping the community in the manor it was established.

Section 3. The Architectural Control Committee is composed of three persons appointed by the Board of the Property Owners Association or by Developer in the interim. In the event of death, dismissal, or resignation of any member of the committee, the remaining members shall have full authority to designate a successor, subject to approval of the Association Board. Neither the members of the committee not its designated representative shall be entitled to any compensation for services performed pursuant to this covenant except as is budgeted and approved by the Association Board.

What I would like to understand is the opinions of the term “dismissal” in the CC&R’s as it is above… I ask this because to me..if I wanted to control a community I would stack the board with like minds and stack the ACC the same…….which is what I SMELL coming as of 2020 with all these new people here….The example I usually give is…and please don’t take offense “Californians moving away for California because they don’t like how it is going, moving to TEXAS and NOW trying to make TEXAS into California” (BTW I am an ex-CA person), but never bringing those ideas here…..

Your thoughts please, I take no offense either....

The ACC is just an advisory they do not have the final say. If you are meeting resistance to an ARC issue, Submit your ARC review to the Board. Either they can immediately approve it or it becomes
an agenda item. We rarely have ARC issues go to agenda, we have approved ARC plans that go outside the normal parameters a few times already.

Sorry, There are new rules regarding ACC in Texas. Let people from Texas weigh in

your CC&Rs say the board has the power to dismiss. I'd say to learn more about the Board's rights to dismiss POA committee members and if your HOA is incorporated, read you state's corporations codes on non-profits.

If Like CA, they'll say that the board has complete authority over committees and may dismiss members with or without cause and also disband the Committee. It'll say the Board has responsibility for committees. The Board also should approve committee members and the chair.

Why not have a director whom the ACC likes present them the new improved methods?

Meanwhile if there are new ACC rules in TX, find them. there are a few good posters form Texas who might be willing to help.

Ok, your underline makes sense "When the HOA is initially formed" then Yes they appoint the ACC because there is none in existence at the time of formation. It does not state that the HOA Board can or SHALL continue to appoint a member or have the power to dismiss one. Members of the ACC are not directors, they operate as a committee with a chair person and x number (2) in our case.
The TPC 209 response is irrelevant, nobody is submitting an application in this subject.
Again the 22.201 says nothing in it talking about dismissal....

help me understand......

Here is my train of thought.

When a HOA is formed the first things that are done are the articles of incorporation, the CC&R's, the Bylaws. Those forming the documents are most likely to be the Developer, thus having his best interest at hand. Our "Developer" kept his people in the ACC until they filed for BK 2-3 years down the road from the start. They (the developer) appointed the ACC people, they were not classified as Directors but members of a committee and nowhere in our CC&R's are they classified anything different than just members. Just like folks on any other committee. Our CC&R's do not state that the HOA board can remove an ACC person as I posted in the above posting, the only way to have a person leave is by death, resignation or "Dismissal" and THERE is where we have the issue. Because Our ACC finds replacements for an open position as per the CC&R's, not the HOA Board, thus they have been given the power (I think) of dismissal not the HOA Board. example, if 1 out of the 3 does something egregious and the 2 remaining members could have that person terminated SINCE they brought them into the ACC.

yes, our CC&R's dictate we have a ACC so the board is not doing that also thank God....

And yes the appeal process can go to the HOA board. But that deals with property.building appeals, not the "Dismissal" process.

Well, you all pretty much have cleared this issue up for me, I think I was over thinking it and taking things literally.

Thank you all for this information, good comments

I posted earlier that the Board has 'full control of the make-up of the ARC.' But in my rush to explain the law of covenants and statutes in one sitting, I overlooked TPC 209.00505. The latter section does place a restriction on whom the Board may appoint to the ARC. Namely, the board may not appoint: spouses of directors, directors, and anyone residing in a director's household.

In other words, BillH10's caution is spot-on. Some command of all the Texas statutes that apply to HOAs is necessary before one assumes that one need read only the covenants to get an answer to a question.

To be a bit (a lot?) snotty: Realize that the advice here often reflects years of reading covenants and often with the help of attorneys and a review of how the courts, as reflected in case law, think about these things. For someone new to HOAs and COAs, I think understanding the wording of covenants may often take many readings, much study and, for the serious HOA/COA owner, asking questions, just as the OP did here (without too much complaining).

Ok, I am going to re-visit this chat because of the following bold and underlined words. The term SHALL is a mandate, not an option, not May but a legal term used to indicate what Must be done.

Section 3. The Architectural Control Committee is composed of three persons appointed by the Board of the Property Owners Association or by Developer in the interim. In the event of death, dismissal, or resignation of any member of the committee, /b the remaining members shall have full authority to designate a successor/ , subject to approval of the Association Board. Neither the members of the committee not its designated representative shall be entitled to any compensation for services performed pursuant to this covenant except as is budgeted and approved by the Association Board.

Shall is an imperative command, usually indicating that certain actions are mandatory, and not permissive. This contrasts with the word “may,” which is generally used to indicate a permissive provision, ordinarily implying some degree of discretion.

Some common uses of the term “shall” in a legal sense include:

In the context of statutes, cases such as this one from California, explain that “settled principles of statutory construction direct that courts ordinarily construe the word ‘may’ as permissive and the word ‘shall’ as mandatory, particularly when a single statute uses both terms.”
Similarly, this case from Illinois, explains that “the word ‘shall’ in a statute generally indicates a mandatory obligation, although courts sometimes interpret it as directory or permissive.”
This case from Illinois, goes on to explain that “when used in a statute, the term ‘shall’ does not have a fixed or inflexible meaning and may be given a permissive or directory interpretation depending on the legislative intent. If a statutory provision using the term ‘shall’ merely directs a manner of conduct to guide officials or is designed to secure order, system, and dispatch in proceedings, it is generally “directory.”

Thanks
I couldn't figure out how to BOLD TEXT so I used /b to indicate the area...

I hope you are not paying short shrift to the qualifier, "subject to approval of the Association Board."

This means that the ACC does not have full control over who serves on the ACC.

For those of us with limited time can you tell me what your question now is?? Is it: what is the term of committee members??. If not in your bylaws or TX non-profit corp statutes, I'd say the board sets the terms.

One year is, I lbelieve, typical nationwide. I

Could you quote verbatim the section of the bylaws that defines the length of the terms for the ACC committee members? If the terms are are not defined (as they are for board members), then they do not exist.

I'll also point out that if the board wishes to shorten anyone's term, they can simply disband and re-form the committee. This is completely within the board's authority. This also means that terms for committee members do not actually exist, regardless of what else the bylaws may say about these "terms".

Actually what you describe sounds like total chaos because you appear to be relying on people and their memory rather than written design standards.