SPECIAL MEETING

[Irve Denenberg]

WE HAD A SPECIAL MEETING for two STATED purposes 1) to keep or remove the current Board, the vote was to remove. 2) to vote for a "new Board"

Our bi-laws state the Board is to made up of  1-9 Board Members.  A motion was made at the "Special Meeting" to limit this new Board to only 5 Board members.  An immediate objection was made that a change in the number of Board members elected was not in the Special Meeting  notice and that the community was not properly notified that limiting the number of Board members was up for a vote.  Since the petitioning group to remove and vote in a "new Board" was running the meeting the vote was allowed to proceed,( amongst protest)  limiting  the Board to only 5 Board members was passed.  

The community feels this was a huge violation and would like confirmation and ideas how to correct this. One solution to correct this would be at our general meeting allow for up to 4 new Board members to be voted in, bring the Board to 9 members.   The Board of 5 suggested that the community should vote at the general meeting and decide if they want to expand the Board.  We contend that the opportunity to vote up to 9 Board members was wrongfully taken away at the Special Meeting  and this should be restored 1st to correct that violation.

Your thoughts and opinions would be greatly appreciated.

Thanks,

Irve

[George Mervosh]

The rule in RONR is "The only business that can be transacted at a special meeting is that which has been specified in the call of the meeting. This rule, however, does not preclude the consideration of privileged motions, or of any subsidiary, incidental, or other motions that may arise in connection with the transaction of such business or the conduct of the meeting"  RONR (11th ed.), p.93.

I think I could be persuaded that the motion to set the number of board members is a motion that may arise in connection with the transaction of of the business in the call.

I have no opinion on whether the first action taken was in any way proper since we don't have enough facts to do so and you didn't ask.

[Atul Kapur]

What was the size of the previous board? How was that number decided (was there a previous motion that set the number)?

If you have been operating under a motion that previously set the number of board members and that was still in effect, then I think there is a valid argument to be made that the motion at the special meeting was out of order as it was not included in the notice of the meeting. It would be a real stretch to say that a motion to Amend Something Previously Adopted could be reasonably foreseen to be part of the two stated items of business.

[Irve Denenberg]

the previous Board was a 9 member board  

[Irve Denenberg]

52 minutes ago, George Mervosh said:

The rule in RONR is "The only business that can be transacted at a special meeting is that which has been specified in the call of the meeting. This rule, however, does not preclude the consideration of privileged motions, or of any subsidiary, incidental, or other motions that may arise in connection with the transaction of such business or the conduct of the meeting"  RONR (11th ed.), p.93.

I think I could be persuaded that the motion to set the number of board members is a motion that may arise in connection with the transaction of of the business in the call.

I have no opinion on whether the first action taken was in any way proper since we don't have enough facts to do so and you didn't ask.

 

[Irve Denenberg]

Our previous Board was made up of 9 Board members   The only reason this motion was made was because the petitioning group only had 5 members that wanted to run for the Board...  They ran only 1 member at a time  and voted the 5 people in and denied the community of adding anyone else....

[Irve Denenberg]

25 minutes ago, Atul Kapur said:

What was the size of the previous board? How was that number decided (was there a previous motion that set the number)?

If you have been operating under a motion that previously set the number of board members and that was still in effect, then I think there is a valid argument to be made that the motion at the special meeting was out of order as it was not included in the notice of the meeting. It would be a real stretch to say that a motion to Amend Something Previously Adopted could be reasonably foreseen to be part of the two stated items of business.

we have allowed up to 9 Board members as stated in our bylaws.  We the members have NEVER voted or any motion ever made to discuss or limit this number

[Josh Martin]

1 hour ago, Irve Denenberg said:

WE HAD A SPECIAL MEETING for two STATED purposes 1) to keep or remove the current Board,

What do your bylaws say (if anything) concerning the removal of board members? If they are silent, what is the exact wording of the term of office?

1 hour ago, Irve Denenberg said:

Our bi-laws state the Board is to made up of  1-9 Board Members.  A motion was made at the "Special Meeting" to limit this new Board to only 5 Board members.  An immediate objection was made that a change in the number of Board members elected was not in the Special Meeting  notice and that the community was not properly notified that limiting the number of Board members was up for a vote.  Since the petitioning group to remove and vote in a "new Board" was running the meeting the vote was allowed to proceed,( amongst protest)  limiting  the Board to only 5 Board members was passed.  

The community feels this was a huge violation and would like confirmation and ideas how to correct this. One solution to correct this would be at our general meeting allow for up to 4 new Board members to be voted in, bring the Board to 9 members.   The Board of 5 suggested that the community should vote at the general meeting and decide if they want to expand the Board.  We contend that the opportunity to vote up to 9 Board members was wrongfully taken away at the Special Meeting  and this should be restored 1st to correct that violation.

Assuming that removing  the board members in this manner was proper to begin with, I do not think there was anything wrong with this action. Indeed, based on the facts presented, I think it was absolutely necessary to take this action. It seems to me that this is an incidental motion arising in connection with the election. If the bylaws merely say that there are between 1 and 9 board members, then some action must be taken to determine precisely how many board members there shall be.

This might be more complicated if the assembly had previously made a decision regarding the size of the board, but since we are told that “We the members have NEVER voted or any motion ever made to discuss or limit this number,” then it seems absolutely necessary to make a determination regarding this matter. Without such a determination, it is not known how many board members to elect. It seems to me the board is absolutely correct that, if members now wish to increase the size of the board, the proper course of action is for the membership to adopt a motion to this effect.

For what it is worth, I strongly advise against setting a range of members in the bylaws, since it inevitably leads to problems like this one.

12 minutes ago, Irve Denenberg said:

Our previous Board was made up of 9 Board members   The only reason this motion was made was because the petitioning group only had 5 members that wanted to run for the Board...  They ran only 1 member at a time  and voted the 5 people in and denied the community of adding anyone else....

Voting on one person at a time is not the proper method of filling multiple identical positions, however, it is too late to raise a Point of Order regarding that issue at this time. Instead, members should be instructed to vote for a number of persons up to the number of open positions. Each ballot is treated as a vote cast for the number of votes needed to receive a majority.

10 minutes ago, Irve Denenberg said:

we have allowed up to 9 Board members as stated in our bylaws.  We the members have NEVER voted or any motion ever made to discuss or limit this number

Yes, but you also never adopted any motion establishing the size of the board at nine. As a consequence, the assembly was within its rights to determine any number of board members between 1 and 9. They chose five.

In the long run, my recommendation is to amend the bylaws to set one number for the size of the board.

Edited September 24, 2019 at 05:31 PM by Josh Martin

[Andrew Mowery]

Hi Everyone, 

I'm new to this forum. Today I received a letter in the mail that included a quote. I googled the quote, and there was only one search result leading to this discussion. It confirms that Irve Denenberg is the author of the attached letter. 19-1111 Anonymous Poudre Overlook Advocates Letter.pdf

Also attached is Irve's letter from just  a week prior to this post/thread, which was signed by him on the same subject matter. 19-0915 Concerned Neighbors Letter to Board.pdf

He's attempting to use the quote by Josh Martin as though it is a legal review of the process followed by several members of our HOA to remove the entire board. Irve is, as is normal MO, leaving out some basic and critical details that would affect your analysis. In fact, the removed board had FIVE board members at the time of removal (and I was one of them), and the board was deadlocked over an issue that directly involved Irve - his non-compliance with Colorado statutes and governing documents as a Board member, as well as the ACC Chairperson in 2018. 

The details and documentation of those issues are available for review at www.poudreoverlook.com, which is a blog I created after Irve and his buddy Walker decided to remove all such documentation from the HOA website in June of 2019 and banish/blacklist me from the community Facebook Group. Irve and Walker are alleged to have fraudulently misrepresented the HOA Attorney to reverse a board decision in order to create $20,000 of out-of-pocket expense for an owner over a shade of gray of roof shingle when our guidelines state that the color is Tamko Weatherwood "or similar". They obfuscated by refusing to answer questions about the alleged legal advice they received, and refused to provide any documents about their Board/Committee activities for 2018, excepting only official notices (which are evidence, in fact, of non-compliance). 

When the HOA attorney finally put in writing that he did not give the advice Irve and Walker claimed to have received, many of our HOA owners decided to use CRS 7-128-108 to remove the entire board, as a means of avoiding the personal embarrassment associated with Irve and Walker's actions, and the actions of other board members to sweep it under the rug and/or cover-up the wrongdoing.

By removing the entire board of 5, the Recall Committee (which followed all legal requirements for petition, notice, and running the meeting) advocated that the Board of 5 be replaced by a Board of 5 for their remaining term (which was all of 2 more board meetings before an annual meeting). There was lively discussion, but I think it would be a good idea for anyone attempting to pass judgment on how the meeting was run to have reviewed the video of the meeting:

https://poudreoverlook.com/video-of-the-8-27-19-special-meeting-at-poudre-overlook/

The community clearly decided, with an absolute majority of 44 members (making the point regarding absent members moot), that 5 board members would be elected. And, that they would be elected to seats one by one.

If each of you on this thread would care to engage on this topic prior to reconsideration of your advice, I will make myself available for the next 24 hours prior to the meeting. You should also not have difficulty finding me on social media, or may communicate with me via the website above. The email address for the website is poudreoverlook at gmail dot com.

If not, I will be printing this thread and handing it out to our membership tomorrow so that they know where the "expert" opinions are coming from. If you care to revise your post or follow-up for that printed hand out, please give me enough time before our meeting at 630pm MST on 11/12/19.

Thank you all of your time on this. Our community has been through quite a bit, and we are all hoping for a day of peace from Irve and his "group".

[Andrew Mowery]

On 9/24/2019 at 11:30 AM, Josh Martin said:

What do your bylaws say (if anything) concerning the removal of board members? If they are silent, what is the exact wording of the term of office?

Assuming that removing  the board members in this manner was proper to begin with, I do not think there was anything wrong with this action. Indeed, based on the facts presented, I think it was absolutely necessary to take this action. It seems to me that this is an incidental motion arising in connection with the election. If the bylaws merely say that there are between 1 and 9 board members, then some action must be taken to determine precisely how many board members there shall be.

This might be more complicated if the assembly had previously made a decision regarding the size of the board, but since we are told that “We the members have NEVER voted or any motion ever made to discuss or limit this number,” then it seems absolutely necessary to make a determination regarding this matter. Without such a determination, it is not known how many board members to elect. It seems to me the board is absolutely correct that, if members now wish to increase the size of the board, the proper course of action is for the membership to adopt a motion to this effect.

For what it is worth, I strongly advise against setting a range of members in the bylaws, since it inevitably leads to problems like this one.

Voting on one person at a time is not the proper method of filling multiple identical positions, however, it is too late to raise a Point of Order regarding that issue at this time. Instead, members should be instructed to vote for a number of persons up to the number of open positions. Each ballot is treated as a vote cast for the number of votes needed to receive a majority.

Yes, but you also never adopted any motion establishing the size of the board at nine. As a consequence, the assembly was within its rights to determine any number of board members between 1 and 9. They chose five.

In the long run, my recommendation is to amend the bylaws to set one number for the size of the board.

Josh,

Our bylaws are similar to state statutes with one major difference: The statute allows for the Board OR HOA Members to choose the NUMBER of Board Members. Per our BYLAWS, ONLY the MEMBERS can choose the NUMBER of Board Members.

Our HOA only dates back to 2003, and was built out from 2004-2009, when the builder was still the Declarant. A group of 3 persons was the entire Board from 2009-2016, and two of them sat with a Builder Representative from 2006-2009. 

In 2016, two of those three persons resigned at once, along with the Management Company due to a fiasco. November of 2017 is when our experiment in self-governance begins. 

We initially had only one resignation at the beginning of the Annual Meeting, and then voted in a single replacement. Then, at the END of that same meeting, the second resignation was tendered. The remaining two Board members (One of whom was just elected) decided to simply appoint the runner-up in the election to be the 3rd seat. 

Between November 2016 and February 2017, this same Board of 3 recommended that the board be increased to 5 in a letter mailed in advance of the meeting. There is no evidence that the Members ever voted on this increase, but merely participated in a vote where 2 additional persons were added, to make it 5.

Then, Irve began a campaign to increase the board to 9 in 2017. I was one of the persons recruited, and his advocacy was about having "control" of the board, with more members that were sympathetic to positions by the existing dominating majority. Again, in November, 2017, there was no vote by members to increase the board members. In fact, the vote was a matter of having 5 additional persons stand up (1 of the prior 5 had resigned), and everyone was asked if they DIDN'T want this group to be added. I don't recall any votes against, so it was some weird form of negative unanimous consent - all done as people were putting on their jackets and attempting to leave a meeting that had already run nearly 3 hours over different issues.

That Board of 9 served from November 2017 through November 2018. 

In November of 2018, we had openings for 2 additional board members, and they were filled to make it a board of 9.

Interestingly, Irve had a self-described melt-down prior to the first Board meeting on 12/18/18, in which he and one other Board members were upset at the recognition that we weren't following Colorado statutes, and needed to begin allowing members to participate in board meetings. The statutes, however, are muddled regarding notice, and Irve was VERY upset that the President and VP had the Communications Committee EMAIL a notice about the meeting. They only wanted it to be posted on a buried page on the website, where we know that at least half the members don't visit within the past year (and 25% haven't visited in 3+ years). Irve stated, at the time, that if he had to know all these "laws and rules", then he didn't want to participate any more.

Irve was not replaced on the Board. The new President raised the issue of there being too many board members who traveled, making quorums an issue, and not enough for 9 people to do in an 87-home (single family residence, upscale) community with ZERO facilities (3 acres of grass/open space that requires mowing, and about a mile of fence). He recommended we whittle the board down to 5. That was the direction we set in January 2019. Unfortunately, that President had to resign for personal reasons in February (no controversy). That moved us to a Board of 7.

By May of 2019, I was Secretary, and was still unable to get Irve and another Board member to turn over ALL documents from their CCR/ACC Enforcement actions in 2018, one of which led to threats of litigation. At issue was alleged fraudulent misrepresentation by Irve and another board member of the HOA attorney advice. I filed a formal report documenting their alleged actions/inactions, and the Board refused to perform it's duty impartially fact-find. And, they sent a letter to the HOA attorney denying him the ability to speak to any other board members (which is violation of another duty). The HOA Attorney, upon realizing he was a witness to a potential fraudulent misrepresentation, terminated the relationship due to Federal Rule 3.7 (can't be advocate and witness).

One additional board member resigned. In her official letter, she cited that she was selling her home and moving. But, an accompanying email cited the friction (and subsequent emotional stress) as the reason. Irve and his friends then portrayed this as CRIMINAL HARASSMENT to the rest of the community, conflating the HOA Attorney's departure and her resignation as both evidence of my CRIMINAL HARASSMENT. 

That put the Board at 6. Again, no replacements were even discussed by Irve or anyone else.

The new President then attempted to take action without a meeting, but didn't realize that any one board member could refuse to vote and make that action impossible. They wanted to hire a new attorney for PERSONAL legal advice, because I had raised the issue that their false accusations of CRIMINAL HARASSMENT (which was accompanied by proof of both an admitted meeting with the District Attorney, and then an ANONYMOUS visit by police to my wife and I's home at 1040pm on a Wednesday night), for which I demanded an apology. When I made clear that the defamation was both in writing and was backed by audio recordings, which would make the defamation per say, that President also resigned, leaving us with a Board of 5.

The Recall Committee that formed held a meeting, and as George correctly cites, the choice to have the FIRST EVER VOTE on the size of the board occurred on 8/27/19. The meeting was video recorded so Irve couldn't do exactly what he is doing here - inventing history with dishonesty and omissions. In fact, it's the ONLY vote for the size of the board that was EVER taken, and the actual increases from 3 to 9 from 2016 to 2017 are arguably worth examining for validity. This is a pattern with Irve (and his "group"), and their desired actions take advantage of springing up complex issues at meetings where members are not only uninformed, but misinformed, or not actually informed at all due to a campaign to collect proxies by Irve and his "group".

All of us have offered Irve opportunity after opportunity to work out his differences in writing, or some other documented manner. He and his group threatened to have me arrested for recording their outrageous behavior, and I've been subjected to an intimidation campaign and defamation ever since. I've been working with Colorado State legislators to address the lack of enforcement in CCIOA, and revisions to those statutes are coming in 2020 after a 2019 Gubantorial veto of legislation that did not have enough protections for homeowners included. 

The bottom line is that CCIOA gives us no avenue other than using CRS 7-128-109 to bar individuals such as Irve from community disruption based upon falsehoods, bad faith, and non-compliance with statutes and governing documents. It's no surprise he would lift a cherry-picked quote from this message board anonymously, and then anonymously send it out to our community under the color of some legal authority. It's a signature move by Irve.

 

[Josh Martin]

1 hour ago, Andrew Mowery said:

He's attempting to use the quote by Josh Martin as though it is a legal review of the process followed by several members of our HOA to remove the entire board.

I would first note the following things: 

• My post is not a legal review of anything. I am not an attorney, and this is not legal advice. It is a parliamentary review of the facts as presented.
• Additionally, the review does not involve the process to remove the entire board. I was not presented with sufficient facts to make such a determination. I asked for additional details, but they were not provided. Instead, it was a review of whether (assuming the removal was proper), it was proper to limit the board to five members. My response was that it was proper. (Mr. Denenberg appears to have ignored this advice.)
• Mr. Denenberg did quote me correctly that voting on one person at a time is not the proper method to fill vacancies, however, he ignored the fact that I said that it is too late to raise a Point of Order regarding this at this time, even though he specifically quoted that language.
• Finally, I should note that we are not in a position to resolve disputes of fact (as it seems may be an issue here), since we have no personal knowledge of the facts of the case. I will assume, for the sake of argument, that the facts you present are accurate, but this should not be interpreted as support for any side of a dispute in questions of fact. It will be up to the assembly to resolve such matters.

With all of that out of the way, I will attempt to address the new questions and facts presented here.

1 hour ago, Andrew Mowery said:

By removing the entire board of 5, the Recall Committee (which followed all legal requirements for petition, notice, and running the meeting) advocated that the Board of 5 be replaced by a Board of 5 for their remaining term (which was all of 2 more board meetings before an annual meeting). There was lively discussion, but I think it would be a good idea for anyone attempting to pass judgment on how the meeting was run to have reviewed the video of the meeting:

https://poudreoverlook.com/video-of-the-8-27-19-special-meeting-at-poudre-overlook/

The community clearly decided, with an absolute majority of 44 members (making the point regarding absent members moot), that 5 board members would be elected.

As I have said previously, this was entirely proper, and in my opinion, even a necessary course of action. None of the facts presented here change my response.

”Assuming that removing  the board members in this manner was proper to begin with, I do not think there was anything wrong with this action. Indeed, based on the facts presented, I think it was absolutely necessary to take this action. It seems to me that this is an incidental motion arising in connection with the election. If the bylaws merely say that there are between 1 and 9 board members, then some action must be taken to determine precisely how many board members there shall be.”

1 hour ago, Andrew Mowery said:

And, that they would be elected to seats one by one.

I maintain my position that this was improper. This is not the proper method to elect multiple identical positions, as my correct (albeit selective) quote notes. None of the facts presented here change my response.

I also maintain my position, however, that it is too late to raise a Point of Order regarding this violation of the rules. In other words, it’s too late to complain about it. A Point of Order (and any subsequent Appeal) regarding this issue would need to have been raised at the time.

Edited November 12, 2019 at 01:08 AM by Josh Martin

[Andrew Mowery]

19 minutes ago, Josh Martin said:

 

”Assuming that removing  the board members in this manner was proper to begin with, I do not think there was anything wrong with this action. Indeed, based on the facts presented, I think it was absolutely necessary to take this action. It seems to me that this is an incidental motion arising in connection with the election. If the bylaws merely say that there are between 1 and 9 board members, then some action must be taken to determine precisely how many board members there shall be.”

I maintain my position that this was improper. This is not the proper method to elect multiple identical positions, as my correct (albeit selective) quote notes. None of the facts presented here change my response.

I also maintain my position, however, that it is too late to raise a Point of Order regarding this violation of the rules. In other words, it’s too late to complain about it. A Point of Order (and any subsequent Appeal) regarding this issue would need to have been raised at the time.

 

Josh,

Thank you for responding. I agree Irve ignored not only your valid advice, but also the advice of others on this thread. He cherry-picked part of your response, and then sent out an anonymous letter to the entire community under the color of legal authority, advice, or expertise. This isn't the first time he's done this.

However, you do raise a good point, and I do acknowledge your expertise on parliamentarian issues. 

Regarding the election, one by one, of each board members, I'd love to review the applicable citations. To be clear, I'm the whistleblower, trying first to get the board to take action, and then, upon a stand-off (and cover-up), I had to go to the community. The members of the community who formed what they named themselves as the "Recall Committee" (and some of us referred to them as "The Petitioners") had about 14 signatory families to the petition. They ran the meeting, and Jayne was the chair of the meeting.

The elections were for each seat individually, 5 in total. Each election had nominations and discussions, and then a vote. 

Irve portrays this as a situation where 5 persons were chosen because the Recall Committee only had 5 persons available to run, is, in fact, false. Because I wasn't part of the group, I can't speak for their intentions. However, I am aware in hindsight that they had up to 9 persons who were willing to run, if necessary. The big question for the community was - WHY do we need NINE board members for a group of 87 single-family homes? 

Irve and his group have no answer for this question. It's not that it's in the best interest of the community, but rather, after their verbal abuse, abuse of authority, and fraudulent and dishonest conduct, the majority of the community rejected representation from persons who would behave in such a manner. In fact, I went over the facts with a lawfirm (Robinson & Henry) who advised us to use CRS 7-128-109 to remove such bad actors from participation. The hitch: $20-30k to go to trial. 

Furthermore, after participating in a State of Colorado process where CCIOA (HOA law in CO) is being reviewed for major changes, the key problem is that CCIOA is UNENFORCEABLE. We have no regulatory agency to take action, the police will not do anything, and so it only leaves expensive litigation to remove such bad faith participants. And, this entire thread is an exhibit for that case (misleading, cherry-picking, and carefully omitting evidence to the contrary).

That said, I am getting the section that our board feels is what validates their action. I'll post that in a follow-up soon.

[Andrew Mowery]

51 minutes ago, Josh Martin said:

I maintain my position that this was improper. This is not the proper method to elect multiple identical positions, as my correct (albeit selective) quote notes. None of the facts presented here change my response.

Josh,

I'm trying to respond with uploading documents, but this site is making it difficult. I'm going to have to transcribe. I have citations. Stand by, please. 

Andy

[Andrew Mowery]

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?

[Josh Martin]

3 minutes ago, Andrew Mowery said:

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?

I suppose if an assembly has no rule or established custom regarding a ballot vote, the assembly could use a voice vote, which does involve voting on each nominee in order in a “yes” or “no” fashion, although RONR suggests that this method is not recommended.

“It will be seen that, under the procedure just described, it is necessary for members wishing to vote for a later nominee to vote against an earlier one. This fact gives an undue advantage to earlier nominees and, accordingly, a voice vote is not a generally suitable method for electing the officers of organized societies.” (RONR, 11th ed., pg. 443)

[Andrew Mowery]

1 hour ago, Josh Martin said:

 

I maintain my position that this was improper. This is not the proper method to elect multiple identical positions, as my correct (albeit selective) quote notes. None of the facts presented here change my response.

I also maintain my position, however, that it is too late to raise a Point of Order regarding this violation of the rules. In other words, it’s too late to complain about it. A Point of Order (and any subsequent Appeal) regarding this issue would need to have been raised at the time.

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.

[Andrew Mowery]

"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."

 

[Andrew Mowery]

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."

[Josh Martin]

16 minutes ago, Andrew Mowery said:

"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."

If it is a ballot vote, then in the situation described here, the positions would generally be voted on at the same time. The situation described in the paragraphs cited here involves a situation in which multiple, different positions are being elected (such as electing a President, Vice President, etc.). If multiple, identical positions are elected (such as five board members):

“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 suppose RONR is not entirely clear, however, whether it is actually prohibited to elect multiple, identical positions on separate ballots.

In any event, if a ballot vote is taken for an election “Strictly speaking, nominations are not necessary when an election is by ballot or roll call, since each member is free to vote for any eligible person, whether he has been nominated or not.” (RONR, 11th ed., pg. 430) I was under the impression that the “one at a time” process being used meant that members were asked to vote “yes or no” on a particular candidate, but I may have misunderstood.

14 minutes ago, Andrew Mowery said:

Colorado Non Profit Act 7-127-208 requires that cumulative voting must be provided for in our bylaws. 

I would that this seems to be another reason to elect all positions on the same ballot. I’m not entirely clear on how cumulative voting would work otherwise.

Edited November 12, 2019 at 02:44 AM by Josh Martin

[Andrew Mowery]

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

[Guest Zev]

Question: 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? Why would anyone create a board that can resist its replacement without an expensive court fight?

[Andrew Mowery]

6 hours ago, Guest Zev said:

Question: 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? Why would anyone create a board that can resist its replacement without an expensive court fight?

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 Martin]

9 hours ago, Andrew Mowery said:

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

I greatly appreciate this clarification. I still personally do not think the seats should have been voted on “one at a time.” Instead, the one seat which expired in 2021 should have been voted on individually, the seats which expired in 2020 should have been voted on together, and the two seats which expired this year should have been voted on together. I would note that I don’t really understand how these staggered terms work when the number of seats on the board is variable, but I suppose that has no bearing on the present question.

Upon further review, however, I do not think that RONR actually prohibits electing multiple, identical positions on separate ballots, it is just rather strange. Additionally, it appears that on each of these ballots, members were free to vote for a person of their choice. As a result, although I may not personally agree with the method used, I do not think it violates any rule in RONR.

9 hours ago, Andrew Mowery said:

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?

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.

9 hours ago, Andrew Mowery said:

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? 

No one (other that Mr. Denenberg) is saying the board must elect nine board members.

[Atul Kapur]

2 hours ago, Andrew Mowery said:

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.

You are asking a legal question. You should ask an attorney familiar with that law and HOA's. 

The phrase that I bolded is one we hear often on this forum, and the usual response is that this is the wrong question - you need to show me what gives you the authority to do that.

[Andrew Mowery]

7 minutes ago, Atul Kapur said:

You are asking a legal question. You should ask an attorney familiar with that law and HOA's. 

The phrase that I bolded is one we hear often on this forum, and the usual response is that this is the wrong question - you need to show me what gives you the authority to do that.

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.