Andrew Mowery

It's been uncanny how many lessons I've learned in this process by drawing parallels - not only in the US, but because I spent a month in India for elections, the same dynamic not only appears there, but is actually a common thread down to the village. Now, I know a few who think a comparison of a modern HOA with half-million$ homes has nothing to do with an agricultural village in the middle of nowhere anyone in the US has ever heard of, but it's the same need for ORDER. This is why, even though my history with Robert's Rules goes back nearly 40 years to high school, I'm finding the universal truths that bring order to contentious groups of any kind or size. Meanwhile, for the newbies (I am one), it takes some time to understand more than the words of a single section to get the purpose behind the whole thing. I am personally grateful to have to not invent this wheel, but to have access to those who understand it's engineering. I truly appreciate the advice and support from those here.

So, Irve didn't even show up at the meeting on Tuesday, and the issue was properly brought to a vote, again. We had an outside parliamentarian chair that portion of the meeting, and the vote went 46-17, with only 8 persons actually in the room for the pro-9 group. After the vote, they stormed out of the meeting, and didn't participate in the actual elections. Amazing what some will do to undermine democracy.

Hi Zev, Your original questions were: 1. Does the Colorado statutes allow an HOA to dispense with a board but instead allow the assembly to direct executive officers by way of motions? So, we are discussing an HOA. And, the HOA Directors are a different topic than the officers. My response is about the Directors (the Board), not the Officers, even though it's possible for someone to hold both positions simultaneously. Therefore, to be clear, an Officer serves at the pleasure of the Board, and the Board can remove an Officer with and without cause at any time. This is a Bylaws issue/procedure. A Director, on the other hand, can only be removed via one of two methods: A. CRS 7-128-108 The association members can form a quorum of 10% (per our bylaws, max 20% per statutes), petition the current board for a meeting, the current board schedules the meeting within 80 days of receiving the petition, and at the meeting, a majority vote can remove the board. WE ALREADY DID THAT ON 8/27/19. B. CRS 7-128-109 The association members can form a quorum of 10%, hire an attorney, and file in the district court in the country where the HOA resides. The judge can then remove one or all board members, and has an additional power to also bar future participation for any length of time he/she deems appropriate: 2. Why would anyone create a board that can resist its replacement without an expensive court fight?" This question is somewhat moot. No expensive court fight is necessary, but rather an option to reach the additional power of barring FUTURE participation (re-election of a director, in particular) for a prescribed period of time. ~~~~~~~ So, I know the thread may be confusing, but the issue is not that we have an existing board that has resisted removal. There is a new board, it's seated, and they've had several board meetings since 8/27/19. So, no, my solution isn't about replacing the current board. The work has already been done. And, it's not about "friendliness", but rather, an entirely different set of issues. Bottom line, a FORMER member of the PRIOR board is alleged to have violated several statutes and the governing documents on more than one occasion (pattern). The same persons who did this are now being aggressive and abusive with the current board, and making unreasonable demands based upon frivolous arguments about RONR procedure (which is why he came here to get a supporting quote, to then send in an anonymous letter to everyone in the community prior to tonight's meeting). So, you have it all backwards, and I am sorry if the lengthy presentation has caused confusion. In reality, our Bylaws actually have at least 4 ways in which the assembly (i.e. owners) can participate and even overrule the board. So, there's no need to dispose of the board concept entirely, and create an assembly-managed organization. What's been brought up repeatedly and is still an open consideration, is going back to hiring a management company to be the Officers and run day to day affairs. Our first 11 years, this was the configuration, but a controversy with that company led to their resignation, and a period of self-management began and continues through today. If you want to dig for any more details, there's plenty here at www.poudreoverlook.com Sorry, again, for any confusion. Andy

Thank you. I do apologize for going astray, and really do appreciate all 3 of you giving your time generously to address the RONR questions.

Agreed. These are theories to be tested. And, while I agree that the attorney should be consulted, that's for the board to do atm. I am independently working with legislators in Colorado who are actively addressing CCIOA (HOA law in Colorado), and specifically the dilemma of the inability for HOA members to have any means whatsoever to enforce CCIOA without expensive litigation. The result appears to be the same for each HOA that encounters this behavior, which I have jokingly referred to as "Lord of the Flies". It appears that everyone at the legislative level is aware of the dilemma with no solution. Currently, it's only possible to remove a board member via the 108/109 process. But, there's absolute silence about those who are engaged in bad faith behavior as chairs of committees, members of committees, or just general membership of the HOA. And, you are absolutely right about the predicate phrase "in voluntary societies". What I should point out to you is that Irve and his buddy Walker, who is a former defense attorney, are fond of reminding everyone how they voluntarily signed the document agreeing to the governing documents. And, since the requirement for having the right to vote (i.e. participate) IS within our bylaws as requiring "good standing", it's simply a matter of amending the definition to include more than paying dues. Because, we clearly have the right to prevent participation without a judge if they don't pay their dues. Now, if not paying $420 has the effect of losing your membership rights to vote, why shouldn't the criteria of being fraudulent, dishonest, or grossly abusing power not also be equal to the infraction of not paying a bill? Yes, that's a GREAT question for the attorney. Better yet, for the community as a whole.

The board has legal counsel. At the moment, the board has general support from the current attorney (recall one quit upon realizing he was a witness to a fraudulent misrepresentation by Irve), but he wants to do a deeper dive that would take several hours to get into these granular questions. I think the expense needs to be considered by the community along with the consideration of a committee to perform impartial fact-finding, when the other option is for Irve to own up to all of this, and simply promise to stop with the inappropriate behavior. So far, there's no sign Irve or his group will ever admit to even the slightest infraction. It's poignant to note that claims of "perfection" in all actions are a notable pattern.

Atul, I should also mention that we have an open issue that was not taken up by the removed board - improprieties by several board members. I took the action of submitting a formal written report of a violation to the board, and it was summarily ignored. "Let it go, Andy" was the refrain. I've found Josh Martin addressing this in a different thread on this forum: "If the rules in RONR are controlling, this is skipping a few steps. Under the formal disciplinary procedures in RONR, an individual member would need to make a motion for an investigative committee (leaving out specifics as much as possible). The club would determine whether there is merit in even appointing an investigative committee. Assuming the club finds that there is, the investigative committee, upon the conclusion of its investigation, would make a recommendation to the club on whether to prefer charges, and if so, regarding the scheduling of a trial. The club would ultimately determine whether to prefer charges and when to schedule the trial. At the trial itself, the club would then find whether the member is to be found guilty of the charges and, if so, what penalty (if any) should be applied. See RONR, 11th ed., pgs. 654-669 for more information." I believe this is the necessary path for Mr. Denenberg, as we cannot appear to have unbiased and impartial fact-finding that will be trusted if performed by members of this HOA. It would appear we need to go outside the organization to avoid all appearances of bias, then have the verified facts considered by our Board using our Policy for Enforcement to consider what, if any, actions are necessary up to and including expulsion. The underlying issue is that Irve and his "group" refuse to admit even the most obvious and documented infractions and non-compliance, and in return, simply accuse the whistleblowers of wrongdoing. It's ironic how this parallels current national events in the USA - almost like taking a cue from them. And, of course, when the facts don't support their theories and arguments, the next most logical thing to do is attack the process, which is what occurred on this forum and through an anonymous letter to the community. All the while, speaking as though they are the voice of the entire or majority of the "community". In reality, the actual majority of the community is fed up with all of this, and is not encouraged that it would appear the only lever to pull is expensive litigation. Certainly, when disruption is this extreme, and the foundation is full of dishonesty and abuse, there must be some means within RONR to reestablish order fairly. These folks always have the option to admit the wrongdoing, plea for forgiveness, and accept censure as middle ground. Or is there another way we aren't considering?

I'm researching what Mr. Martin posted earlier, which is a quoted reference to RONR. "RONR gives a society the right to discipline its own members, up to and including expulsion, for behavior “tending to injure the good name of the organization, disturb its well-being, or hamper it in its work.” There is a lengthy process to follow, discussed in Ch. XX of RONR. If your bylaws or applicable law have their own rules on this subject (which seems to be the case), those rules take precedence." Our governing documents have a policy stating we shall follow RONR. "In voluntary societies, ROBERT’S RULES OF ORDER NEWLY REVISED, states on page 644, that members can be disciplined for conduct outside a meeting or work in the organization that tends "to injure the good name of the organization, disturb its well-being, or hamper it in its work"." So, the question back to you is whether this alone gives the community the choice to remove a member from participation in self-governance for crossing the same lines stated in CRS 7-128-109 Paragraph (1). This allows a judge to bar participation if the member is "engaged in fraudulent or dishonest conduct or gross abuse of authority or discretion with respect to the nonprofit corporation". The question is whether the community can identify the same red line being crossed, and then use RONR pp644 to exercise it's right to use expulsion as a remedy - and the required threshold of votes (I believe it would be the 2/3 threshold). Our bylaws are silent about expulsion of non-directors.

We only have two statutes to address removal of an individual director, or all at once. CRS 7-128-108 requires the HOA to form a quorum of no more than 20% to initiate the process, and then there are details about the petition, scheduling of a special meeting, and notice requirements. That's what we did collectively on 8/27/19. And, to be clear, I was a member of the board that was removed, but I supported the measure as the board had repeatedly been non-compliant with state statutes and the governing documents. The majority was 3 persons of 5, and they absolutely refused any review of their past actions. "Andy, let it go. It's in the past." The other option is CRS 7-128-109, which has the same quorum requirements (our bylaws require 10% of the community, or 9 homes). In that scenario, you hire an attorney who verifies the quorum, and the case is filed in the district court in the county where the HOA is located. The judge can then remove the directors, but has one additional power - they can also bar individuals from future participation for a time period, or permanently. What we are wondering is whether or not the community, which is the alternate adjudicator to the judge, has the same parallel power to bar participation - although not explicit in the -108 statute, there does not appear to be any statute forbidding such actions. We've reviewed RONR regarding removal of disruptive members from meetings, but the issue here is that Irve is repeatedly using falsehoods and general dishonestly to intentionally mislead other members. Shining a light on the falsehood is obviously a disinfectant, but the persistence of this nuisance is a drag on volunteerism, and we are concerned that the intent is to wear people down until they regain control of the board. Going back to your original question, we do believe that the assembly has the right to legislate and create policy, at the very least. And, by creating the right policies, we believe we can follow the examples of other successful HOAs (with more history), and create a suite of policies to address the issues of anonymity, intentional dishonesty, and abuse of the board (verbal abuse, hollow legal threats, threats to board members to move and sell their homes, and intimidation in various forms). Essentially, our governing documents are lacking a Code of Conduct (ethics), beyond a general direction to act in good faith. We've seen examples from other HOAs that are attractive, but you raise the right point - would it be both right and more effective if the entire community voted in such measures vs. the potential for controversy if a specific board enacted such measures. As you can see, Irve is trigger-happy about accusing the board of taking "invalid" or "illegal" actions, and his accusations never hold up to scrutiny. We think RONR must have, at some point in history, have recognized this personality type and associated behavior is disruptive and given an ideal solution. We just haven't found it yet. If it exists, we could use the assist.

Josh, I think it would be a good idea to review the video. I think you are misunderstanding my explanation. Also, the section you are quoting here isn't a 3rd option. The intro to the section literally says there's two options. This quote below clarifies one of the options, but doesn't offer yet another. "“In an election of members of a board or committee in which votes are cast in one section of the ballot for multiple positions on the board or committee, every ballot with a vote for one or more candidates is counted as one vote cast, and a candidate must receive a majority of the total of such votes to be elected. In such a case, if more than the prescribed number receive a majority vote, the places are filled by the proper number receiving the largest number of votes. If less than the proper number receive a majority vote, those who do have a majority are elected, and all others remain as candidates for the necessary repeated balloting. Similarly, if some individuals receive a majority but are tied for the lowest position that would elect, all of them also remain as candidates on the next ballot.” (RONR, 11th ed., pg. 441)" I think the other thing you are missing is that the board positions aren't all equal. Each has a 3-year term, but they are rotating. So, for instance, 2 of the 5 seats that were being re-filled expire in November. So, there's a distinct difference between Seats #1-5. One goes to 2021, 2 to 2020, and 2 expire tomorrow. So, we have a regularly scheduled election tomorrow for the 2 expiring seats. Irve proposed, as a bargain, that in exchange for the BOARD adding 4 seats (which is not allowed by bylaws), that the 2 expiring seats not actually expire, and that the community gets no vote on this at all. Now, that morphed into his latest proposal, where he wants 4 persons added. But, I've also been asking Irve for weeks to explain what, exactly is the community need for the additional 4 board members. Just because it's a range of 1-9 directors doesn't means it must be 9. Irve and his group have failed, for two months, to give a single positive reason why more people, particularly people from their "group" need to be added. The current board is getting the work done, the meets are now calm and efficient (now that they are recorded to discourage theatrics and threats/intimidation), and there's really no driving force for addition of more directors. Meanwhile, the very fact that Irve came here and misrepresented your advice gives rise to an even more important question: Do we, as a community, have a right to bar dishonest persons from participation? I think, one caveat that maybe isn't considered is that we are both a corporation and quasi-governmental. We have a distinct problem with board members who are not following the statutes and governing documents, and there's no means of enforcing the rules on such persons (known issue at legislative level, and I'm a direct participant and have spoken at the state capitol last month). We have no regulatory agency to remove bad actors, and the only means of barring participation is prohibitively expensive. So, why should the community make room for people WHO DO THESE THINGS AS A PATTERN OF BEHAVIOR just because the upper end of the range for directors is 9? And, why should we have a cross-country race where they can attain a board position by taking 9th place in the race? I think you need to look at these questions with full context, and not strictly from a myopic view of a single clause in RONR. Thank you, again, for your time on this. It's been very helpful. Andy

Colorado Non Profit Act 7-127-208 requires that cumulative voting must be provided for in our bylaws. RONR, page 444, states "this method of voting must be viewed with reservation wince it violates the fundamental principle of parliamentary law that each member is entitled to one and only one vote on a question."

"Two alternative procedures for the sequence of nominating and voting in elections by ballot can be prescribed or adopted as mentioned above". First Method:"All nominations can be completed before any balloting takes place - in which case voting for all offices is commonly done by a single ballot" In each case where a candidate has a majority, the chair declare that candidate elected. For offices for which no candidate has a majority, the chair announces, " no election" and "the chair directs new ballots be distributed for those offices for which no candidates a majority. Second, method: "balloting for each office immediately follows nominations from the floor for that office. The ballots are counted for one office and the result of that election is announced - after repeating balloting if necessary - before the next office to be voted on is opened to nominations from the floor" "Which ever one o the preceding methods of election is used, if any office remains unfilled after the first ballot, as may happen if there are more than two nominees, the balloting is repeated for that office as many time sas necessary to obtain a majority vote for a single candidate."

So, this is secret ballot, not voice vote. I actually have the President over, and we have RONR open. We are looking at 438-441. I will start transcribing supportive quotes. Thank you for your time.

Robert's Rules of Order Pages 438-441 describes two methods for conducting elections: "In an assembly or organization that does not have a rule or established custom prescribing the method of voting in elections, the voting can be by any of the accepted methods." Can you please cite where you say we've gone awry?