Our new Code of Conduct!

Started by BillD16 • 17 replies • 471 views

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BillD16 (Texas)
Posts: 971

Posted:

Hello all! I've missed you guys. But I've been following the advice that several of you gave me to just stay the hell away from HOA matters. And so far that's been working out pretty well. I stepped down from the Board at the Annual Meeting in mid-July, and (bonus) a few people who made me nervous about the possibility of retaliation have gone away. On the downside, I'm still recovering from my first-ever case of COVID, and I was unable to travel to see my son defend his dissertation and earn his PhD in Microbiology. On the plus side: he's got a really cool PhD in Microbiology!

Earlier this week was the first general meeting of the Board. It was (mostly) alright, except that the Board voted to pass a number of new Rules&Regulations (supposedly "required by new Texas State legislation").

Item: for reasons I do not understand, our R&Rs are seriously disorganized. Long story short, the Board voted to approve a set of 8 amendments which our attorney sent us earlier this year; one of them is a legislative update requirement thing. The others? There appears to be some kind of disconnect. I don't think anyone on the Board has actually read the amendments. A highlight of the recent meeting was one Board member who said "I haven't read them, but I'll vote to approve them."

Item: I don't understand why new Rules & Regulations (in Texas, apparently) don't have to be provided to owners for discussion before they're voted on?

Item: the amendment that I have "issues" with is the new Code of Conduct, which I've mentioned here before several months ago. I sent a couple of emails to my fellow Board members back in early May, warning that we shouldn't do this - but nobody cared.

The Code of Conduct - which was passed unanimously with virtually zero discussion - includes 25+ items like

- photographing, recording, or video-taping residents, guests, or agents of the Association without their express consent.
- posting any item, including correspondence, on the doors of any other resident or anywhere in the community without express written permission from the Board, and placing any item in the area of the door(s) of any other resident or anywhere else in the community other than in a resident’s own property.
- publicly posting in any forum (by way of example and not limitation: via internet, text, mail, paper flyer) any comment, statement or remark about an Association employee, officer, director or representative that is or may be reasonably interpreted as defamatory, threatening, harassing, or intimidating.

"a fine in the amount of $100/violation shall apply to each violation of this Code of Conduct, unless the Board of Directors determines otherwise. If an Owner has been cited for a violation of this Code of Conduct in the preceding six months, the fine shall increase to $150/violation"

I realize that most First Amendment / Freedom of Speech law applies only to the government, but still - technically this Code makes the delivery of mis-delivered mail a violation. Not to mention posting something critical about a Board member to FB is a no-no - but there doesn't appear to be a similar prohibition against Board members posting something rotten about a homeowner.

There's no due process on any of this stuff, and it's not at all clear how (or if) one can challenge a Code of Conduct violation.

Maybe it doesn't matter - I don't think anyone on the Board is even aware of what they've done in voting to approve this Code.

Bill

HOA Board ex-President
Austin, Texas USA

“You can’t put too much water in a nuclear reactor”

SheliaH (Indiana)
Posts: 6,964

Posted:

Great to hear from you - and glad you're enjoying your freedom!

I think I may have mentioned this before, but your biggest challenge as a now former board member will be to resist stepping back into a hot mess. You only published snippets of the new rules, so I can't say if they're a bad idea (although you may be right about the lack of due process). It may be the board is already feeling the heat from bad decision making and are trying to stifle protest, but that nearly always backfires. But it ain't your problem anymore.

It's OK to do your research on what the state actually requires, but remember, rules and regulations aren't always mandated by the state. The hierarchy of laws goes:

Federal law
State law
City/county law
HOA Declaration
HOA Bylaws and CCRs
Community rules and regulations - assuming the HOA documents give 5he board authority to enact them and they can't override the bylaws, CCRs or the other stuff. Sometimes state law refers to HOA documents if they're tougher or the law applies to HOAs created after a certain date.

You said these things were drafted by an attorney, but even they don't know everything - or the board ignored his/her advice and went with this stuff. It's also possible both scenarios have happened.

Let me repeat - not your problem anymore, if they want to step into a big pile of brown stuff, it may be mud or dookey- either way it'll make a mess and they will need to clean it up. Until then do your homework just in case they try to drag you into some fuckery. Now go enjoy your son's accomplishment!

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

GregoryT1
Posts: 315

Posted:

Hey Bill welcome back. I always enjoyed your tagline under your name!

I will second Sheila comments.

In addition to the hierarchy of the laws sometimes the laws will work with the other laws and it's less of a hierarchy and more of a complicated ball of yarn at least in my state.

Enjoy the "retired" life and get out of the mess unless it's financial then fight like hell. Congrats on your becoming a "Doctor". That is an accomplishment.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Howdie from soggy Ohio, where we apparently have hurricanes now.

Glad to hear that you survived the dreaded covid, and congrats to your son. I've been watching "Matters Microbial" videos on Microbe.TV and enjoying them a lot. They're perfect for the educated layperson, and Mark Martin is a very engaging speaker.

Anyway, here's what I know about amendments to CC&Rs vs. Rules and Regulations.

* The only amendments that the board can approve are ones that bring the CC&Rs into compliance with current state law - ie, the amendments can contain no other provisions besides this. Otherwise, the amendments must be approved by a majority of the voting interests of the association, and usually a super-majority. A few amendments may require unanimous approval. The board members get to vote, but they're voting as members of the association and not as directors - their votes carry no more weight than anyone else's.

* In my state, the board has the authority to enact any rules and regulations they want to. As Sheila noted, these rules and regulations must be consistent with the CC&Rs and any other laws that are higher in the "legal food chain" - otherwise, they are not enforceable.

Even though our boards have this authority, it may be smart to poll the membership about some of them. On the other hand, you risk getting opinions that will be uninformed and contrary to what the board believes is needed. In the latter case, why ask if the answer isn't binding in any way - you just annoy people by doing so.

The rules about not photographing or recording people without their consent and not posting things on community property make sense to me. However, I'm in a condo community, any outdoor activity will take place on the common elements, and our board has the right to regulate what happens there.

The rules about not posting inappropriate information about association management or directors/officers" won't be enforceable and will give the troublemakers reason to double down - why make it fun for them? These kinds of requirements belong in a Terms of Service agreement that should be enforced by the owners of the website, publication, whatever. Sending such material through the US mail may be a violation of US laws. The board has a legal right to go after someone who is posting defamatory material since that's actually a violation of US laws. Ditto harassment, threats, etc. These need to be pursued through the court system and not at the association level - although it will be a good idea to figure out ahead of time when such behavior needs a response and when it makes more sense to ignore it. ("Free speech" is not a defense against a charge of defamation or other violations of the law. The speech may be "free" but the consequences won't be.)

Re: due process for rules and regulations, violations typically are handling the same way as any other violation (ie, warning letter, notice, hearing, imposition of fine or other penalty). I assume your governing docs have language allowing this - you may need to dig for it. But for the big items that are actually violations of the law, I'd go straight for the legal remedies. Someone who's willing to break the law isn't going to be deterred by an HOA slap on the wrist - unless it's being banned from the pool.

DeanJ
Posts: 1,786

Posted:

Quote:

Posted By BillD16 on 09/27/2024 6:59 PM
Hello all! I've missed you guys. But I've been following the advice that several of you gave me to just stay the hell away from HOA matters. And so far that's been working out pretty well. I stepped down from the Board at the Annual Meeting in mid-July, and (bonus) a few people who made me nervous about the possibility of retaliation have gone away. On the downside, I'm still recovering from my first-ever case of COVID, and I was unable to travel to see my son defend his dissertation and earn his PhD in Microbiology. On the plus side: he's got a really cool PhD in Microbiology!

Earlier this week was the first general meeting of the Board. It was (mostly) alright, except that the Board voted to pass a number of new Rules&Regulations (supposedly "required by new Texas State legislation").

Item: for reasons I do not understand, our R&Rs are seriously disorganized. Long story short, the Board voted to approve a set of 8 amendments which our attorney sent us earlier this year; one of them is a legislative update requirement thing. The others? There appears to be some kind of disconnect. I don't think anyone on the Board has actually read the amendments. A highlight of the recent meeting was one Board member who said "I haven't read them, but I'll vote to approve them."

Item: I don't understand why new Rules & Regulations (in Texas, apparently) don't have to be provided to owners for discussion before they're voted on?

Item: the amendment that I have "issues" with is the new Code of Conduct, which I've mentioned here before several months ago. I sent a couple of emails to my fellow Board members back in early May, warning that we shouldn't do this - but nobody cared.

The Code of Conduct - which was passed unanimously with virtually zero discussion - includes 25+ items like

- photographing, recording, or video-taping residents, guests, or agents of the Association without their express consent.
- posting any item, including correspondence, on the doors of any other resident or anywhere in the community without express written permission from the Board, and placing any item in the area of the door(s) of any other resident or anywhere else in the community other than in a resident’s own property.
- publicly posting in any forum (by way of example and not limitation: via internet, text, mail, paper flyer) any comment, statement or remark about an Association employee, officer, director or representative that is or may be reasonably interpreted as defamatory, threatening, harassing, or intimidating.

"a fine in the amount of $100/violation shall apply to each violation of this Code of Conduct, unless the Board of Directors determines otherwise. If an Owner has been cited for a violation of this Code of Conduct in the preceding six months, the fine shall increase to $150/violation"

I realize that most First Amendment / Freedom of Speech law applies only to the government, but still - technically this Code makes the delivery of mis-delivered mail a violation. Not to mention posting something critical about a Board member to FB is a no-no - but there doesn't appear to be a similar prohibition against Board members posting something rotten about a homeowner.

There's no due process on any of this stuff, and it's not at all clear how (or if) one can challenge a Code of Conduct violation.

Maybe it doesn't matter - I don't think anyone on the Board is even aware of what they've done in voting to approve this Code.

Bill

If you read my posts, you probably know I favor a strong board vs the we are a democracy type HOA. Regardless, HOA regulations must be reasonable.

The board passing regulations without homeowner comment is reasonable if permitted by law and the declaration. Especially rules protecting the board and PM from harassment and defamatory acts by owners.

No Filming or photographing residents without consent - is reasonable because people use this as a form of invasion of privacy and harassment.

No posting items - very reasonable because this stuff liters up the community. If you want to leave an informational flyer, knock on the door and give it to them or mail it.

Restricting homeowners from using defamatory, threatening, harassing, or intimidating posts, emails or texts involving the board or management is reasonable. Stating you don’t like the fee increase and discussing alternatives to the increase doesn’t violate this rule.

The fines are reasonable.

Your violations policy should have an appeal procedure.

DeanJ
Posts: 1,786

Posted:

Quote:

Posted By CathyA3 on 09/28/2024 5:27 AM
Howdie from soggy Ohio, where we apparently have hurricanes now.

Glad to hear that you survived the dreaded covid, and congrats to your son. I've been watching "Matters Microbial" videos on Microbe.TV and enjoying them a lot. They're perfect for the educated layperson, and Mark Martin is a very engaging speaker.

Anyway, here's what I know about amendments to CC&Rs vs. Rules and Regulations.

* The only amendments that the board can approve are ones that bring the CC&Rs into compliance with current state law - ie, the amendments can contain no other provisions besides this. Otherwise, the amendments must be approved by a majority of the voting interests of the association, and usually a super-majority. A few amendments may require unanimous approval. The board members get to vote, but they're voting as members of the association and not as directors - their votes carry no more weight than anyone else's.

* In my state, the board has the authority to enact any rules and regulations they want to. As Sheila noted, these rules and regulations must be consistent with the CC&Rs and any other laws that are higher in the "legal food chain" - otherwise, they are not enforceable.

Even though our boards have this authority, it may be smart to poll the membership about some of them. On the other hand, you risk getting opinions that will be uninformed and contrary to what the board believes is needed. In the latter case, why ask if the answer isn't binding in any way - you just annoy people by doing so.

The rules about not photographing or recording people without their consent and not posting things on community property make sense to me. However, I'm in a condo community, any outdoor activity will take place on the common elements, and our board has the right to regulate what happens there.

The rules about not posting inappropriate information about association management or directors/officers" won't be enforceable and will give the troublemakers reason to double down - why make it fun for them? These kinds of requirements belong in a Terms of Service agreement that should be enforced by the owners of the website, publication, whatever. Sending such material through the US mail may be a violation of US laws. The board has a legal right to go after someone who is posting defamatory material since that's actually a violation of US laws. Ditto harassment, threats, etc. These need to be pursued through the court system and not at the association level - although it will be a good idea to figure out ahead of time when such behavior needs a response and when it makes more sense to ignore it. ("Free speech" is not a defense against a charge of defamation or other violations of the law. The speech may be "free" but the consequences won't be.)

Re: due process for rules and regulations, violations typically are handling the same way as any other violation (ie, warning letter, notice, hearing, imposition of fine or other penalty). I assume your governing docs have language allowing this - you may need to dig for it. But for the big items that are actually violations of the law, I'd go straight for the legal remedies. Someone who's willing to break the law isn't going to be deterred by an HOA slap on the wrist - unless it's being banned from the pool.

All HOA rules govern conduct and as an owner in the HOA your conduct may be reasonably regulated. It can be failing to do something or doing something. If an owner disrupts a meeting, distributes defamatory materials, threatens, or harasses, this is conduct that can be prohibited.

It sounds like the board involved performed due diligence and adopted regulations in conjunction with the HOA attorney.

JulieH4
Posts: 75

Posted:

Hello and so glad to hear from you!
Congrats to your son. That is definitely an accomplishment!

We have cameras but the Board wants more and there are some that say it's a violation of privacy.

I didn't know the rules in Texas have changed again, I will go look that up. Maybe we will have more to add!

Thanks

BillD16 (Texas)
Posts: 971

Posted:

Hi Julie! And thanks!

I may not have been clear: the changes I'm griping about are just for my neighborhood. I don't know if Texas has changed any laws about cameras. FWIW, we have some text in our governing docs about the HOA's use of cameras, and who can access them, and how, etc. But it seems to address only the cameras up at the pool (and, perhaps, on other common property, if such cameras existed), Anyhow - I don't want to misinform you (or anyone ... especially since I've been avoiding all of this stuff), so ... don't take anything I say as gospel!

Bill

HOA Board ex-President
Austin, Texas USA

“You can’t put too much water in a nuclear reactor”

BillD16 (Texas)
Posts: 971

Posted:

I want to thank everyone who responded! I’m basically going to keep my head down.

> It sounds like the board involved performed due diligence and adopted regulations in conjunction with the HOA attorney.

*sigh* y’see, that’s the problem, with this and so many other issues in my HOA: no, they did not perform due diligence etc. It’s really more a matter of things being so screwed up that it’s easier to ignore the hard truth and do something that’s wrong - like, let’s just go and vote to adopt this stuff our attorney sent us 6 months ago, who cares what it says?{1} - and chances are no-one will ever even notice. And it’s very difficult to even describe these issues in a manner that makes sense and is easy to read. I mean, some of you have probably written me off long ago as delusional and paranoid. I don’t hold it against you, and I totally get it. But I’ve personally experienced how - for instance - there is no way to make people be honest. For instance, if I get some bogus violation filed on me, I can go through the appeals process - but there’s absolutely nothing that can make people be honest and fair about deciding whether or not to drop the violation. If a couple of the Board members hold a grudge - I’m sunk. As an example: a year ago when Dragon-Breath Lady did her thing on me, no-one on the Board would back me up on it. I even had video - but in the end, they watched it and just said “I don’t see the problem” and there’s nothing to be done about it. *sigh* I’ll stop now.

Best regards to all of you!

Bill

{1} for instance, one of the new amendments to our Rules&Regulations regulates political signs in our neighborhood. But there has been zero discussion on the topic, on the Board or in the neighborhood, and while it would be very difficult to prove it, I’m quite sure that none of the current Board members are even aware of what they’ve done.

HOA Board ex-President
Austin, Texas USA

“You can’t put too much water in a nuclear reactor”

WendyM5 (North Carolina)
Posts: 1,522

Posted:

According to Texas Property Code § 202.001, an HOA cannot enforce a restriction on the display of political signs that are:

Not larger than 24 inches by 36 inches.
Displayed no earlier than 90 days before an election and removed no later than 10 days after the election.
Therefore, while an HOA can have rules regarding the placement and size of signs, they cannot outright ban political signs if they comply with these regulations. Always check your specific HOA bylaws and consult legal counsel if you have further questions or need specific guidance.

vis ta vie

DeanJ
Posts: 1,786

Posted:

Quote:

Posted By BillD16 on 09/30/2024 5:51 PM
I want to thank everyone who responded! I’m basically going to keep my head down.

> It sounds like the board involved performed due diligence and adopted regulations in conjunction with the HOA attorney.

*sigh* y’see, that’s the problem, with this and so many other issues in my HOA: no, they did not perform due diligence etc. It’s really more a matter of things being so screwed up that it’s easier to ignore the hard truth and do something that’s wrong - like, let’s just go and vote to adopt this stuff our attorney sent us 6 months ago, who cares what it says?{1} - and chances are no-one will ever even notice. And it’s very difficult to even describe these issues in a manner that makes sense and is easy to read. I mean, some of you have probably written me off long ago as delusional and paranoid. I don’t hold it against you, and I totally get it. But I’ve personally experienced how - for instance - there is no way to make people be honest. For instance, if I get some bogus violation filed on me, I can go through the appeals process - but there’s absolutely nothing that can make people be honest and fair about deciding whether or not to drop the violation. If a couple of the Board members hold a grudge - I’m sunk. As an example: a year ago when Dragon-Breath Lady did her thing on me, no-one on the Board would back me up on it. I even had video - but in the end, they watched it and just said “I don’t see the problem” and there’s nothing to be done about it. *sigh* I’ll stop now.

Best regards to all of you!

Bill

{1} for instance, one of the new amendments to our Rules&Regulations regulates political signs in our neighborhood. But there has been zero discussion on the topic, on the Board or in the neighborhood, and while it would be very difficult to prove it, I’m quite sure that none of the current Board members are even aware of what they’ve done.

Lawyers tend to write effective rules that will stand the scrutiny of a court action if it goes that far.

The homeowners tend to approve rules that board will have difficulty enforcing and will usually fail a test in court.

If you want rules that never cannot enforced, there is no reason for a board to bother passing any.

KerryL1 (California)
Posts: 14,550

Posted:

Good citation, Wendy. Interesting to see that Calif isn't the only state that permits political noncommercial signs.

I assume from the quote one that this means an owner's private home' windows? Or does it mean something else? I disagree with
Wendy that this would be in the Bylaws. Instead, if such is permitted by the CC&Rs, as noted by Shelia & Cathy, it'd be in thier rules & regulation

I saw a list of Bill' proposed rules weeks ago and though many were ridiculous AND are writte by a lawyer. I believ he's on target to think the current Board just wants to get I something done even if they do not know what they're doing.

JulieH4
Posts: 75

Posted:

Hi! We just had this same situation with an owner (actually my mother).

Also according to Texas code, signs cannot be placed on any kind of plants (she had put stickers on elephant ears) and if it offends anyone, it must be removed.

I had her check with an attorney friend of hers because she was arguing that nobody should get offended by political signs and he agreed that she cannot have them due to the fact that a neighbor complained that they were offended.

CathyA3 (Ohio)
Posts: 6,299

Posted:

It isn't the content of the signs, it's the fact that they can damage the plants that probably let to that restriction.

It ain't all politics, much as some try to make it that way.

KerryL1 (California)
Posts: 14,550

Posted:

What, exact words, do your. rules or CC&Rs say about this?

Ia the plant your. mother's or the HOA's?

Your mother's attorney friend may know nothing about her governing documents or TX HA law on this topic.

are you on the board?

JulieH4
Posts: 75

Posted:

Quote:

Posted By KerryL1 on 10/22/2024 1:58 PM
What, exact words, do your. rules or CC&Rs say about this?

Is the plant your. mother's or the HOA's?

Your mother's attorney friend may know nothing about her governing documents or TX HA law on this topic.

are you on the board?

Hi and thanks Kerry,

I am the property manager for the HOA. Anything outside the condo studs is HOA property, including plants. Our rules state no signs of any kind (even for sale signs) allowed unless approved by the Board. I agree about her attorney, I just read the Texas statutes and our rules to let her know to remove the signs.

She is a big supporter of a candidate and the offended people (I got an email advising they were offended by the signs she put in the windows) are supporters of the other candidates. It's fun at my house right now! ;)

BillD16 (Texas)
Posts: 971

Posted:

Hi all! Did I hear someone say "political signs in Texas"?

First off, a minor note: in 2019 the HOA political sign statute was "transferred, redesignated and amended from (Texas) Property Code, Section 202.009" to Texas Election Code, Section 259.002. I've appended the relevant code below{1}.

What I find most interesting is how most people don't understand the nature of the law. Many people seem to think that this law imposes all of the stated restrictions upon any political signs in any HOA anywhere in Texas. But it does not. Note 259.002(b): "Except as otherwise provided by this section, a property owners' association may not enforce or adopt a restrictive covenant that prohibits a property owner from displaying on the owner's property one or more signs advertising a candidate or measure for an election: (followed by a list)". There's probably an actual legal term for this, but I don't know it; in the Computer Science Biz this is a "meta-rule"; it's a rule about how other rules may be written. Specifically in this case, it's a law that delineates the metes and bounds that an HOA must respect if they're going to enact a rule about political signs.

Why does this matter? Maybe it's just personal for me: as with so many HOA things, what really matters is not the actual law or rule or covenant; what matters is how people choose to interpret them{2}. And I have a 'peeve' about people going around and enforcing laws and rules incorrectly because they don't understand them.

Until very recently, my neighborhood had no rules about political signs. It didn't matter, the PMC went and enforced the rules in accordance with their (mis)understanding of 259.002. It never affected me, but some of my neighbors got cheesed off. And someone would patiently explain to them how they needed to follow the rules set down in 259.002. Which was wrong, but ... nobody cared!

Feeling my nerd-sap rising today,

Bill (who is not a lawyer)

{1} https://statutes.capitol.texas.gov/Docs/EL/htm/EL.259.htm

CHAPTER 259. POLITICAL SIGNS
...
Sec. 259.002. REGULATION OF DISPLAY OF POLITICAL SIGNS BY PROPERTY OWNERS' ASSOCIATION. (a) In this section, "property owners' association" has the meaning assigned by Section 202.001, Property Code.

(b) Except as otherwise provided by this section, a property owners' association may not enforce or adopt a restrictive covenant that prohibits a property owner from displaying on the owner's property one or more signs advertising a candidate or measure for an election:

(1) on or after the 90th day before the date of the election to which the sign relates; or

(2) before the 10th day after that election date.

(c) This section does not prohibit the enforcement or adoption of a covenant that:

(1) requires a sign to be ground-mounted; or

(2) limits a property owner to displaying only one sign for each candidate or measure.

(d) This section does not prohibit the enforcement or adoption of a covenant that prohibits a sign that:

(1) contains roofing material, siding, paving materials, flora, one or more balloons or lights, or any other similar building, landscaping, or nonstandard decorative component;

(2) is attached in any way to plant material, a traffic control device, a light, a trailer, a vehicle, or any other existing structure or object;

(3) includes the painting of architectural surfaces;

(4) threatens the public health or safety;

(5) is larger than four feet by six feet;

(6) violates a law;

(7) contains language, graphics, or any display that would be offensive to the ordinary person; or

(8) is accompanied by music or other sounds or by streamers or is otherwise distracting to motorists.

(e) A property owners' association may remove a sign displayed in violation of a restrictive covenant permitted by this section.

Added by Acts 2005, 79th Leg., Ch. 1010 (H.B. 873), Sec. 1, eff. June 18, 2005.
Transferred, redesignated and amended from Property Code, Section 202.009 by Acts 2019, 86th Leg., R.S., Ch. 824 (H.B. 2554), Sec. 3, eff. September 1, 2019.

{2} it might not be obvious, but this is intended as sarcasm.

HOA Board ex-President
Austin, Texas USA

“You can’t put too much water in a nuclear reactor”

JulieH4
Posts: 75

Posted:

Quote:

Posted By BillD16 on 10/25/2024 2:48 PM
Hi all! Did I hear someone say "political signs in Texas"?

(c) This section does not prohibit the enforcement or adoption of a covenant that:

(2) is attached in any way to plant material, a traffic control device, a light, a trailer, a vehicle, or any other existing structure or object;
(7) contains language, graphics, or any display that would be offensive to the ordinary person; or

Hi Bill!

These are the rules I had to tell my mother. She had put stickers on plants and one of our neighbors was "offended". It's silly but I just follow what the Board says!

Y'all have a great day!!!

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