June 2016 (No) Recording Resolution by Directors denying homeowners their right to record meetings

RECORDING RESOLUTION - Incorrect citations of authority, no basis in law, ORS, Bylaws, or Robert's Rules of to substantiate this resolution.

What is CITATION OF AUTHORITIES?
The reading of, or reference to, legal authorities and precedents, (such as constitutions, statutes, reported cases, and elementary treatises,) in arguments to courts, or In legal text-books, to establish or fortify the propositions advanced.

CITATION OF AUTHORITIES as used in the “Recording Resolutions” by the HOA attorney are as follows:

Article I, Section 4, Bylaws: 

“…the purpose of the Association is to “serve as the means through which the members may take action with regard to administration, management and operations of [Oak Knoll].””

Article I, Section 6, Bylaws:

“…”proprietary” membership in the Association is automatic for “[e]very person or entity who is a record owner of a fee or undivided fee interest in any Lot….””

Article III, Section 3, Bylaws:

“…the Association’s Board of Directors (“Board”) has all of the powers and duties necessary for the administration of the affairs of the Association, except such powers and duties as by law, the Declaration, or Bylaws, may not be delegated to the Board by the owners.”

ORS 94.630(1)(a) and Article III, Section 3(g), Bylaws:

“…the Board on behalf of the Association, may adopt, modify, or revoke rules and regulations for Oak Knoll governing the conduct of persons and the use of the common areas, as it may deem necessary or appropriate in order to assure the peaceful and orderly use and enjoyment of Oak Knoll.”

Article III, Section 3(h), Bylaws:

“…provides that the Board may enforce by legal means the provisions of the Declaration, Bylaws, and rules and regulations of the Association.”

ORS 94.630(1)(m): 

“…provides that the Board may pursuant to a schedule of fines, levy reasonable fines for violations of the declaration, bylaws, and rules and regulations of the association, after giving written notice of and an opportunity to be heard.”

ORS 94.657and Article II, Section 12, Bylaws:

“…provides meeting (sic) shall be conducted in accordance with Robert’s Rules of Order.”

Section 2 of Robert’s Rules of Order, 11th Edition:

“…provides the board may adopt standing rules for the administration of the Association.”

Section 25 of Robert’s Rules of Order, 11th Edition:

“…provides that the standing rules may specifically include rules regarding the use of recording devises at meeting (sic).”

NOW HERE IS WHAT EACH CIATION ACTUALLY STATES, word for word:

Article I, Section 4, Bylaws (this has no biding authority to create let alone enforce this recording resolution)

Purposes. This Association is formed to serve as the means through which the members may take action with regard to administration, management and operation of the Development.

Article I, Section 6, Bylaws (this has no biding authority to create let alone enforce this recording resolution)

Membership. Every person or entity who is a record owner of a fee or undivided fee interest in any Lot shall be a proprietary member of the Association. The foregoing is not intended to include persons or entities who hold an interest merely as security for the performance of an obligation. Membership may not be separated from ownership of any Lot which is subject to assessment by the Association. Ownership of such Lot shall be the sole qualification for membership.

Article III, Section 3, Bylaws (this has no biding authority to create let alone enforce this recording resolution)

Powers and Duties. The Board of Directors shall have all of the powers and duties necessary for the administration of the affairs of the Association, except such powers and duties as by law or by the Declaration or by these Bylaws may not be delegated to the Board of Directors by the members. The powers and duties to be exercised by the Board of Directors shall include, but shall not be limited to the following:

(a) Operation, care, upkeep, maintenance and repair of common areas in accordance with law, these Bylaws and the Declaration.

(b) Assessment and collection of assessments as provided in the Declaration and the making of related expenditures set forth in the Declaration.

(c) Employment and dismissal of such personnel as necessary for the efficient maintenance, upkeep and repair of the common areas.

(d) Employment of legal, accounting or other personnel for reasonable compensation to perform such services as may be required for the proper administration of the Association.

(e) Opening of bank accounts on behalf of the Association and designating the signatories required therefor.

(f) Obtaining insurance or bonds pursuant to the provisions of these Bylaws, the Declarant or law.

(g) Adoption in accordance with these Bylaws or reasonable administrative rules and regulations for use of the common areas.

(h) Enforcement by legal means of the provisions of applicable law, the Declaration, these Bylaws and any rules and regulations adopted hereunder.

ORS 94.630(1)(a) (this has no biding authority to create let alone enforce this recording resolution when directly juxtaposed with Article III, Section 3(g), Bylaws below…)

(1) Subject to subsection (2) of this section and except as otherwise provided in its declaration or bylaws, a homeowners association may:

(a) Adopt and amend bylaws, rules and regulations for the planned community;

Article III, Section 3(g), Bylaws (this has no biding authority to create let alone enforce this recording resolution)

(g) Adoption in accordance with these Bylaws or reasonable administrative rules and regulations for use of the common areas.

Article III, Section 3(h), Bylaws (this has no biding authority to create let alone enforce this recording resolution created on false premises)

(h) Enforcement by legal means of the provisions of applicable law, the Declaration, these
Bylaws and any rules and regulations adopted hereunder.

ORS 94.630(1)(m) (this has no biding authority to create let alone enforce this recording resolution)

(1) Subject to subsection (2) of this section and except as otherwise provided in its declaration or bylaws, a homeowners association may:

(m) Adopt rules regarding the termination of utility services paid for out of assessments of the association and access to and use of recreational and service facilities available to owners. The rules must provide for written notice and an opportunity to be heard before the association may terminate the rights of any owners to receive the benefits or services until the correction of any violation covered by the rule has occurred;

The correct citation of authority the HOA’s attorney should have cited is as follows:

ORS 94.630(1)(n)

(1) Subject to subsection (2) of this section and except as otherwise provided in its declaration or bylaws, a homeowners association may:

(n) Impose charges for late payment of assessments and attorney fees related to the collection of assessments and, after giving written notice and an opportunity to be heard, levy [[reasonable fines]] for violations of the declaration, bylaws, rules and regulations of the association, provided that the charge imposed or the fine levied by the association is based:

(A) On a schedule contained in the declaration or bylaws, or an amendment to either that is delivered to each lot, mailed to the mailing address of each lot or mailed to the mailing addresses designated in writing by the owners; or

(B) On a resolution of the association or its board of directors that is delivered to each lot, mailed to the mailing address of each lot or mailed to the mailing addresses designated in writing by the owners;

There is NOTHING reasonable about a $200 fine, and any reasonable person would agree.

ORS 94.657 (this has no biding authority to create let alone enforce this recording resolution)

Rules of order. (1) Unless other rules of order are required by the declaration or bylaws or by a resolution of the association or its board of directors, meetings of the association and the board of directors shall be conducted according to the latest edition of Robert’s Rules of Order published by the Robert’s Rules Association.

(2) A decision of the association or the board of directors may not be challenged because the appropriate rules of order were not used unless a person entitled to be heard was denied the right to be heard and raised an objection at the meeting in which the right to be heard was denied.

(3) A decision of the association and the board of directors is deemed valid without regard to procedural errors related to the rules of order one year after the decision is made unless the error appears on the face of a written instrument memorializing the decision.

Article II, Section 12, Bylaws (this has no biding authority to create let alone enforce this recording resolution)

Conduct of Meetings. Except as otherwise provided herein, meetings shall be conducted in accordance with Roberts Rules of Order.

Section 2 of Robert’s Rules of Order, 11th Edition (INCORRECT CITATION):

RONR (11th ed.), p. 18, II. 1-10 (CORRECT CITATION)

Standing Rules, as understood in this book except in the case of conventions, are rules (1) which are related to the details of the administration of a society rather than to parliamentary procedure, and (2) which can be adopted or changed upon the same conditions as any ordinary act of the society. An example of such a rule might be one setting the hour at which meetings are to begin, or one relating to the maintenance of a guest register.

Section 25 of Robert’s Rules of Order, 11th Edition (INCORRECT CITATION):

RONR (11th ed.), p. 265, II. 25-29 (CORRECT CITATION)

RULES THAT CAN BE SUSPENDED BY A MAJORITY VOTE: An ordinary standing rule, as the term is used in this book, is a rule that does not relate to parliamentary procedure as such and refers, for example, to such matters as the use of recording devises at meetings.

Interesting point of fact is that there are only TWO references to “recording device” found in the Robert’s Rules of Order, the one cited above (RONR (11th ed.), p. 265, II. 25-29) and below:

RONR (11th ed.), p. 471, II. 25-27

The use by the secretary of a recording device can be of great benefit in preparing the minutes, but a transcription from it should never be used as the minutes themselves.

A reasonable person would conclude that this second reference juxtaposed to the first means the recording device to be used and a special rule established thereon is specifically demarcated to the secretary’s use of a recording device, and NOT a member of the society. 

The Robert’s Rules of Order are specifically clear in that the Board of Directors has NO SPECIAL AUTHORITY granted it by the Rules of Order, or any other documents other than the Bylaws of the Association.

RONR (11th ed.), p. 482, II. 25-29

A society has no executive board, nor can its officers act as a board, except as the bylaws may provide; and when so established, the board has only such power as is delegated to it by the bylaws or by vote of the society’s assembly referring individual matters to it.

Fact of the matter is, the RONR is silent on members of the society using or not using recording devices at monthly meetings of the association; but the RONR is perfectly clear in its single reference to recording device being used by the “secretary.”

The HOAs attorney has incorrectly cited authorities from the Bylaws and ORS, thus failing to properly substantiate the Board of Director’s “authority” to draft let alone pass such a poorly written resolution as this “Recording Resolution.” 

This is nothing short of a resolution meant to protect the Board of Directors and not the homeowners, whom to date, for those that have been present at Board Meetings where this very issue was addressed, NOT A SINGLE HOMEOWNER voiced that they had NO issues with the recording of the meeting by either a homeowner or the Board. Each homeowner even when to question the Board as to why they were not even recording the meeting. Responses were one poorly voiced excuse after another blaming it all on the homeowners THAT WERE NOT EVEN PRESENT at the meeting(s).

What else is even more striking is the fact that the Board via the attorney and management company are citing the Robert’s Rules of Order whenever it suites their self-perceived best interests, but they NEVER conduct themselves in a meeting under the same Robert’s Rules of Order as a matter of normal function in the course of their duties in conducting said meeting(s).

ORS 164.540 (6) The prohibitions in subsection (1)(c) of this section do not apply to persons who intercept or attempt to intercept with an unconcealed recording device the oral communications that are part of any of the following proceedings: 
(a) Public or semipublic meetings such as hearings before governmental or quasi-governmental bodies, trials, press conferences, public speeches, rallies and sporting or other events; 
(c) Private meetings or conferences if all others involved knew or reasonably should have known that the recording was being made. 

By virtue of law, it is allowed and permissible; thus legal and lawful and authorized by this statute to record private meetings; the recording resolution is in direct conflict with this statute, and as a result state law supersedes the resolution as does all other state or federal laws in which the governing documents conflict with (e.g. street parking is not allowed in CC&Rs, but the Board admitted in a Newsletter that that cannot be enforced since state law allows it (i.e. makes it permissible thus legal and lawful and authorized by state statute).

OKHA WatchDog