9-17-2007-
TPSA LEADERS PROPOSE BYLAW AMENDMENT DESIGNED TO
PROTECT LEADERSHIP FROM LAWSUITS.
Small print details legal recourse stripped from members.
On Friday, September 21, 2007, the TPSA will hold its 5th annual convention. The TPSA
board of directors has already adopted “Article 10 Arbitration” and will take up the issue at
the annual members meeting on the 22nd. Article 10 reads:
Article 10 Arbitration
In the event a dispute arises among members and/or among any individual sitting on the
Board of Directors, the parties agree to resolve the dispute or controversy regarding
performance of any obligation arising out of membership or Board of Director activities,
interpretation of these Bylaws or other claim for damages arising from these Bylaws or
employment with or membership in the Texas Process Servers Association by binding
arbitration pursuant to the rules of the American Arbitration Association effective at the time
any claim, dispute, or controversy is made.
TPSA members should ask themselves who is more at risk here. Just what are “obligations
arising out of membership?" As a TPSA member, your only obligation is to pay your
membership dues on time. If you don't, you can be kicked out of the association. Board
members, on the other hand, have many “obligations” and are more at risk of being sued
for improprieties and unethical behavior.
Article 10 continues:
The Arbitration shall be held at a location within the County where the principal office is
located on 30-day notice to the parties unless rules of the American Arbitration Association
provide otherwise. The arbitrator shall apply relevant law and the hearing shall conclude
within 120 days unless otherwise ordered by the arbitrator. The decision of the arbitrator
shall be based upon written and reasoned findings of fact and conclusions of law. An
award by the arbitrator shall be final and shall be binding on all parties to the proceeding.
The prevailing party shall be paid by the non-prevailing party in the amount of the judgment,
if any, in addition to the costs and expenses of the prevailing party including reasonable
attorney’s fees.
Arbitration awards are usually final and binding within the arbitration proceedings.
However, a closer look at the fine print reveals what Article 10 is really about.
Judgment on the award may be entered by either party in an appropriate local, state or
federal court of competent jurisdiction or before any relevant administrative body. The
parties hereby agree that transactions relating to the Texas Process Servers Association
shall be subject to and governed by the Texas Arbitration Act as codified in Tex. Civ. Prac. &
Rem. Code Ann. Chapter 171 and Tex. Civ. Prac. & Rem. Code Ann. §§ 173.001-173.004
(Vernon 1997 & Supp. 2001) and as the relevant portions may be amended from time to
time. By approving this arbitration clause, the membership acknowledges that it has read
this arbitration clause, that the arbitration clause is fully understood, that this arbitration
clause is an express waiver of a right to a jury trial or to seek other remedies in a court of
law, and that the membership agrees to be bound by its terms from the date it becomes
effective and thereafter. The membership also understands that its rights to appeal or
change an arbitration award are very limited.
Even if you disagree with Article 10, you will be required to arbitrate with no recourse for
filing a lawsuit in a court of law. The approval of Article 10 will mandate that “the
membership” is bound to the provisions of the article. If, for any reason, you would prefer
to sue instead of arbitrate, or if you arbitrate, but are dissatisfied with the outcome, too bad.
You will be stuck. Existing members will be bound by Article 10 and future members will be
bound simply by the act of joining the association.
Article 10 will do little to benefit the membership, but goes a long way to protect the
directors of the TPSA board. It reflects a possible concern among those worried about
being named as defendants in a potential lawsuit. It could also be a bi-product of the
shakeup that's been taking place within the association's leadership. Arbitration
agreements are usually implemented as a dispute resolution measure designed as a mutual
benefit for all parties. The timing of this change to the TPSA bylaws is very suspect.
Growing dissatisfaction with the TPSA leadership and allegations of conflicts of interest and
improprieties may have some at the top worried about possible litigation.
TPSA leaders have proven many times in the past that they do very little without a hidden
agenda. This is just one more example of changes to the association’s bylaws that could
be designed to protect the few and restrict the many. Some day, when process servers are
regulated up to their eyeballs, and start losing their livelihoods because of the self-serving
actions of the few, maybe they will look back and realize they should have done something
to protect themselves.
TPSA MEMBERS, I implore you. Attend your association conference this year. Demand
answers to your questions. Demand to be included in decisions that would affect your
career, your association and your industry. Demand that you be allowed to sue them
should they do something so deserving by voting against article 10. Demand that the
negative constable influence be flushed out and removed from the TPSA. Demand that
your desires, whatever they may be, are conveyed to the Texas Supreme Court by those
who are supposed to be representing your interests. For example, your leader(s) should be
telling the Court that you DO NOT support switching the current three year training
requirement to a yearly procedure with more hours of training. YOUR president
recommended this change without asking your opinion! Demand that your leaders strive
for changes that would assist the industry, not restrict it! Demand that the membership be
polled on issues like this and that the results are relayed to the Court. Remember that in
2005, your leaders asked you to send letters to the Court asking them to implement
certification "as worded." Demand they hold up their end of that bargain. As soon as
certification took effect, your leader(s) moved immediately to completely overhaul the
program. Demand to know why. Remember that your leaders told you in 2006 that they
would NEVER support legislation that would create fees for the industry. Demand to know
why they did not keep their word. In 2007, your leader(s) asked you to support a "fees" bill
but did not tell you that everything that would have benefited you was not included or had
been removed. Demand to know why.
Many people have sacrificed their time and their own money to keep our industry safe from
greed and special interests. Those people are counting on each and every TPSA member
to take back control of their association. You expelled the energy to fill out an application
and join their association. Please expel the energy to get involved, speak up, vote and
voice your opinions. This is how an industry association is supposed to work, how it
should work. As long as the membership remains silent, your leaders will continue to do
what THEY want with your name and your money. If you joined only for the credential of
membership or to have your name listed on their website, you are doing yourself a
disservice in the long run. Your membership dues and training course fees serve only to
fatten their legislative war chest; a war chest routinely used to file legislation that would
restrict the very people who funded it.
The Texas Process Servers' Association is just that. It belongs to the members, not the
directors!
Story by:
Tod E. Pendergrass
Membership denied by the TPSA board of directors; wonder why?