Organizational Meeting / Filling a Vacancy

So we had our Annual Meeting and elected one new Board member. We needed two.. I’m posting to ask if there are any tips or best practices regarding the Organizational Meeting (which, according to our Bylaws, needs to be held within 10 days of the Annual Meeting)(the newly elected Board member was not present at the Annual Meeting, so we did not hold it immediately afterwards).

Plus: how best to deal with filling a vacancy? We’re supposed to be a 5 member Board. Our Bylaws say we need to appoint a new Board member within 30 days.

Our current President has a friend A who is willing to serve on the Board. The other Board members don’t know this person and have never met them.

Q1a: Should A be invited to the Organizational Meeting?
Q1b: If so, should A be allowed to vote or otherwise have a voice in the Officer assignments?

Q2: What (if any) kind of ‘interview process’ for A would be acceptable or best practice? I am trying to write this in an unbiased manner, but: I’m not crazy about just blindly accepting a random friend of the President who has stepped up{1}. Our governing documents offer no guidance.

I’ve been Treasurer for 2 years. I might like to be President for my 3rd and probably final year. The current President may wish to remain President.

Q3a: Recommendations for resolving “who gets to be President”? A vote seems the most obvious answer (although I’ve heard of drawing straws etc). I have no clear idea of how people might vote. Plus, given Q1b above, I don’t know how many people will be voting. 5? 4? I can easily foresee a tie vote with 4 voters.

Q3b: Should the current President and myself abstain from voting? I don’t see it making a difference in the outcome, but maybe it’s an ‘optics’ thing?

Q4: What is the proper way to word the motion for the vote? In a post from 2015{2}, TimB mentions:
> Now, some political savvy individuals can word motions to their advantage when they
> know a the issue could be defeated by a tie. I suspect some have even seen this in
> various issues brought to voters. Example:
>
> Motion to award contract to contractor a or contractor b - 2 for A, 2 for B - contract
> not awarded to either until tie is broken.
> Motion to award contract to contractor a - 2 yea, 2 nay - motion fails. Therefore,
> by process of elimination, contract is awarded to contractor b.
>
> Motion to allow sheds - 2 yea, 2 nay - motion fails, sheds are not allowed
> Motion to prohibit sheds - 2 yea, 2 nay - motion fails, sheds are allowed

This leads me to ponder things like

Motion for Current President to remain President - 2 yea, 2 nay - which would leave us with no President?

Or

Motion for BillD to take office of President - 2 yea, 2 nay - current President keeps position.

Neither of these seem right to me (but maybe I’m biased).

Thoughts?

Thank you,

BillD

{1} this happened during my first year on the Board and it did not turn out well.

{2} https://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/188081/view/topic/Default.aspx

In Texas and per TPC 209, isn't the organizational meeting required to be open to all owners? Whence A gets the same notice as all other owners.

I think the answers to your other questions lie in "good judgment" and "fiduciary duty." Here's what I suggest:

I would hope the board interviews candidates in executive session, prior to the organizational meeting. I believe this is an executive session matter because the risk of an applicant-owner's private information being divulged is too great. State statute TPC 209 says such discussions (where private info is discussed) can be held in exec session. Anyone saying, "Tough, the volunteer's private info comes out": I say, "Tough yourself. Private means private. I am not in the business of humiliating people in front of the owners, especially a volunteer. This HOA does not need to deter people from service. The work is demanding enough. Nor do I like the liability involved when a group possibly gets puffed up, plays "Bigshot", and starts asking tough questions. I move to hold the interviews in executive session."

Have the directors agree to appoint someone as president just for this one executive session, where candidates are interviewed.

After a fifth director is appointed, proceed to arrange for the organizational meeting.

If a fifth director cannot be appointed before the organizational meeting deadline, no big deal. Proceed to the organizational meeting.

Per statute and I bet the bylaws, only directors vote on who will take what officer position. Candidates get no vote.

Appointment of a fifth director is a critical and fiduciary duty of the current directors IMO. It should be undertaken with due solemnity, AFAIC. IOW absolutely, the board interviews applicants.

I am not sure if you are asking about what sort of questions would be good. FWIW: I would flatly and cheerfully explain to each applicant that the HOA is legally structured such that it must comply with state statutes (of which two are especial important for a new director) and its Declaration and bylaws. Ask the candidate if he or she can share his or her thoughts on what this means. Coach candidates amiably though briefly, as needed, and see how receptive the candidate is to learning. Let them know this is not a knowledge test. It's a test to see if they understand where to go to learn the general obligations of the board.
I highly encourage all agreeing that if a tie vote for President occurs, one of the two presides for the first six months of the year. The other presides for the last six months.

Furthermore, unless someone really never wants to serve as president, I think all directors should be open to rotating the president's position yearly, for as long as the person is on the board.

All directors vote for officers, even if a director ends up voting for himself/herself. After all: Couldn't you see yourself as being the better President than many many others? Would you not vote for yourself because of "optics"? Remember your fiduciary duty and the requirement to act in the best interests of the HOA.

Regarding léger de main with motions: I am not buying that this opportunity arises all that much. And if it does, directors should err on the side of clarity to all and acting in the best interests of the HOA in general. I think the examples you posted are more an example of poor motions than anything else.

I forgot to mention in the other thread that from afar, I too was pleased to read that Mr. T apologized to the lifeguards.

Having participated in 3 and having witnessed probably 10 Candidates Nights in my HOA, I think Mark's questions are what owners have asked board candidates repeatedly" Mark wrote: "I would base my questions on a few key areas. Likeability, Knowledge, time availability and of course understanding of the rules."

When, while I was a director, we've interviewed candidates to fill vacancies in executive session, the questions have been similar except, we never emphasized knowledge of the "rules" or governing documents because of the couple of dozen I've seen over the years, only one or two had any clue and then because they'd served on a Calif. HOA previously. From all of these candidates, they will not know anything about our finances unless they come yup through the finance Committee, which has happened 2-3 times.

Owners or directors over these years often ask candidates about the goals or plans a candidate might have to improve our community.

Sure, the officers can stay the same as they are now, though apparently an organizational meeting IS required. Still the motion can be to maintain the current positions until a 5th member is seated. Over the 14 years I was on our board, I observed that in general, it takes a person a couple of years to be an effective president in our complicated HOA. So, a 6-month term for president just isn't enough time unless a very simple HOA. Most Bylaws, I think call for on-year terms for officers.

One of our best presidents was new on the board BUT had served previously on a large CA HOA board, so knew the CA Open Meeting Act, AND had a lot of presiding experience in his pre-retirement profession. Wonderful combination.

MarkM19, Excellent advice and so true!

A big Thank You to all who responded.

I realize that I’ve been asking a lot of these kinds of questions - I hope it’s not becoming tedious. In addition to helping me, I hope that future generations of readers will benefit.

And I hate to admit it, but as much as I disliked my neighborhood’s previous administration for their slovenly and haphazard tendency to just do whatever the hell they wanted to do, I’ve developed some insight into how easy it can be to do that: it often seems like there are rules and questions at every step, and it takes a substantial amount of effort to move forward on anything and everything.

Among other things, I was happy to see that y’all agreed that A should have no part of the Organization meeting. And - d’oh - I was re-reading Texas Property Code Chapter 209{1} and noticed{2} that filling vacancies must be discussed at an Open Meeting. Given the timing and notification requirements, that’s simply not going to happen before the Org meeting{3}.

I truly have nothing against A. But based on experience not just here but also from when I was gainfully employed, I believe it’s usually better to wait for a qualified person than to simply accept the first / only applicant.

Sadly: ElleN is quite correct in noting that we have serious apathy issues in our HOA. As MarkM and KerryL suggested, I’m going to propose that we send out another “call to action” email in hopes of finding at least one additional candidate.

I appreciated the various comments on how to interview candidates. What resonated with me is going with a hopefully short list of ‘standard’ questions to ask all candidates in executive session (and being mindful of someone going all Spanish Inquisition on a candidate).

I’ll be re-reading the thread and I expect I’ll notice other good points.

Again, thank you all.

Best regards,

Bill

{1} https://statutes.capitol.texas.gov/SOTWDocs/PR/htm/PR.209.htm

{2} Again. *sigh*. This cropped up (in slightly different form) almost 2 years ago shortly after I was elected to the Board: we were down a Board member; the at-the-time-President proposed a candidate and I just went with the flow and agreed; later the a-t-t-President tried to stall a decision until the next Open Meeting by pointing at 209.0051.h.(1) (“fines;”); I read the code and noticed 209.0051.h.(13) (“the filling of a vacancy on the board;”) and asked “uh, doesn’t this also mean that GG isn’t really a Board member?”; and the a-t-t-P and a-t-t-VP proposed ‘fixing’ the situation by altering records; and that’s when the conflict really began. I feel sorta dumb that I didn’t connect the dots until this morning.

{3} Oh, and also 209.0051.h.(15) (“the election of an officer.”). Damn, that ElleN, she is good!

In other words, I stand corrected. interviews of officers and candidates applying for an appointment to the board have to happen in open session.

If a "private" issue arises where defamation/liability might be a concern, I still urge moving to executive session for discussion of just this issue.

All that's nice, but TPC 209 changed in September 2015 to require, among other things, that consideration of candidates and officers be done in open session. I expect the Texas legislature was tired of hearing about corruption in their constituents' HOAs.

Unlike Florida and California, AFAICT Texas HOA owners do not have the right to participate at all in board meetings. There is no requirement for an "open forum" segment at board meetings.

I hear you and Kerry. Those who run for election (to become a director) at the annual meeting face a public interview. Maybe it's fine, and even completely appropriate, to require that applicant interviews, for an interim board appointment, be done in open session.

I see the California law firm that runs the D-S site asserts that director and officer selection are also not executive session topics. See https://www.davis-stirling.com/HOME/E/Executive-Session-Meetings

Florida appears to take the same view: Director and officer selection are not executive session topics.

Seems like a pattern to me.

Maybe this just requires an attitude adjustment. This would include my own, since above my first blush impression (before reading the sections BillD16 cited) was to hold the interviews in executive session.

This is only your opinion. Checking every use of the word "consider" or "considering" in TPC 209, like a court would, is worthwhile. Note this other sentence from TPC 209:

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,...

Put it this way (as you know full well): Candidates face the membership. The membership at an annual meeting has the right to raise their hands and ask questions. Candidates are not required to respond. A non-response is still a type of response.

I come down on the side of considering this to be rogue behavior in California, Texas and Florida. I think of TerriS6, LizD3 and many others here who are sick of the lack of transparency. If any of these folks in the latter three states objected, and especially if they saw signs of crony-ism, I would suggest they request dispute resolution (with the usual caveats to be ready for retaliation by a rogue board).

[snipped repetition] I get that you feel strongly that this statute ought to be disobeyed.

Hi again, all! Some movement on this stuff at my end. If anyone is curious, here's what happened:

As previously reported, our President found a volunteer A who agreed to sit on the Board to fill in our vacant 5th place. From what I know of them, A is a nice, decent person who probably shares a lot of my same views. But I've never met them. And I've been burned in the past, where a sitting President finds a friend to volunteer. I advised the President and the rest of the Board that Best Practice here was likely a) hold the Organization Meeting w/o A, b) Elect officers, c) send out email to Homeowners asking for a volunteer, d) hopefully hearing from one or more additional volunteers, e) interviewing volunteers, and f) choosing one.

No-one - even me - was particularly happy with this. We have a really horrible issue with apathy in my neighborhood.

But perhaps I digress a bit. I went back and looked at records from last year. It seems like something of a fiction to me, but Texas Property Code 209 and our Bylaws say that it's okay to end the Open Annual Meeting with a Closed Executive Session, and then take a 'break' and re-convene this Closed Executive Session as the Organization Meeting. Bylaws say this must happen within 10 days of the Annual Meeting. Long story short, that's what we did. To be 100% honest, I don't remember us ending the Annual Meeting that way - but maybe I missed something. A person that I don't even know posted something to FB later and said "the larger group meeting transitioned into a board-only meeting". The point of all of this is that the Organization Meeting is a continuation of the "Open" Annual Meeting, and thus we stay within 209.0051.(h).(15) "the election of an officer." in that (technically) it happened in an Open Meeting.

The Officer selection process went well. I expected some conflict but I was wrong and, in the immortal words of Al Haig: "I'm in control here."

Kidding. Although - yes, I'm now the President, which makes me both happy and wary.

The only downside of the meeting was that there was an overwhelming interest in bringing A onto the Board and just being done with it. I could have insisted on a vote (which I would have lost) but I ended up going with the flow. And, from a legal standpoint, this is happening at an Open Meeting and so satisfies 209.0051.(h).(13) "the filling of a vacancy on the board;" A is coming onto the Board as its new Treasurer, and as it happens there is an important financial issue that needs to be addressed{1}, so I'll be working very closely with them and will be able to see if they're doing a good job of it. What's that about 'micromanagement'? Not me! But A is said to have some decent finance chops and *fingers crossed* that's what I'll see.

Finally, ElleN is correct: Texas HOA owners do not have the right to participate at all in board meetings, and there is no requirement for an "open forum" segment at board meetings. The sad fact is that we wish more homeowners *would* participate.

Again, thank you all for your advice and suggestions on this matter!

Bill

{1} Last year around September we transitioned to a new PMC when our previous PMC was bought out. The transition has had its rough spots but it's largely been a Good Thing for the neighborhood. One still-present 'rough spot' involves the collection of dues - I think there is something broken, in that an inexplicably large number of people are behind by one or more payments. I ran into this myself: I went to the website, made my payment, got a confirmation that said "Thank you for your payment!", did a screencapture ... and almost missed it when a couple of days later I got an email saying that the payment didn't happen. I suspect this is happening to a lot of people, and we need to fix it.

In our experience, the board meets privately with prospective directors filling a vacancy to make sure they will vote in lockstep with existing directors on controversial issues.

The interviews may have been illegal, Terri, I'm still not so sur. but directors' discussion & vote by secret ballot in the open board meeting was legal.

Congrats, Bill on becoming president as you'd hoped.. And it's really good that you can meet early on an important matters with the new director.

I believe what Kerry is saying is that the Directors vote on which applicant to accept for the open Board position is by secret ballot. I've never tried to do it, but I'm sure someone could vamp up a secret ballot mechanism that could be used via ZOOM.

Having said that, it does seem kind of artificial. I daresay that most groups of 3-7 people would be pretty lousy at hiding their opinions and preferences in such a circumstance and it's probably not too difficult to figure out who voted how.

Also: the notion of having people apply to fill the empty seat and then be interviewed sorta flies in the face of my neighborhood's reality, where we can't even get enough people to step up. There are probably neighborhoods where seats are very hot tickets and people are willing to go to some effort to get seated. Around here, it'd be like "oookay, so you're not asking me to be *on* the Board; you're asking me to submit a resume and then be interviewed and then hopefully I'll measure up to your standards? ********************** and the horse you rode in on, too."

Thanks for the congrats, Kerry. So far the best thing about it has been the jokes: "As your President, I'd like a glass of water, please", or "Your President agrees that it would be pleasant to watch the news." My wife thinks it's hilarious. NOT.

Bill

Kerry, thank you for explaining what your assoc does.
Our board's practice has been to have someone resign just before their term was up then appoint a replacement of their choice. There never was a notice of vacancy. The replacement director was just announced. They didn't even pretend to have a meeting about it. So there were always 5 like minded directors alleviating in members' minds the need for more volunteers. Now that we have election rules, the inspector sends out a call for nominations.

That reminds me, JohnC, our Board had a vacancy where the replacement director's first meeting would be in July. We had one applicant, a vocational dissident or chief complaining officer (COO), take your pick. The Board voted to leave the vacancy unfilled since the annual meeting was in October. Our Bylaws state that if a vacancy is unfilled the membership can fill it, but that didn't happen.

You know, Terri? I don't think there's any statute or anything in our Bylaws or Election Rules that says the Board must advertise vacancies. I'm glad your Election Rules now give all owners a chance to run for the annual election.

I'm a little confused, here, Terri, about what you're referring to in your last post. For our annual meeting & elections there are no executive sessions involved in any step along the way. I can't think of any possible justification for an ex. session??????

Ah, yes, Terri. Your statement about notice, etc. seemed to refer to our annual meeting & election. Interviews in executive session have only has only been in the cases of vacancies on the Board when we've had multiple candidates.