SPECIAL MEETING

[Andrew Mowery]

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? 

[Josh Martin]

38 minutes ago, Andrew Mowery said:

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.

I don’t know. Your organization should seek legal counsel.

[Andrew Mowery]

1 minute ago, Josh Martin said:

I don’t know. Your organization should seek legal counsel.

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 Kapur]

1 hour ago, Andrew Mowery said:

"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".

Concentrate on the first three words: "in voluntary societies".

I'm not sure that an HOA is a voluntary society. As I understand it, membership requires you to have a home in the area under the HOA's jurisdiction and, I suppose, having a home in that jurisdiction gives you the automatic right of membership in the HOA. Frankly, I don't want to hear the answer to this question. I am just raising it as one that your analysis needs to consider and that you should get legal advice about. I would also ask what is the limit of your disciplinary authority.

Also, I question your description of your HOA as an "alternative adjudicator", and your assumption that you can grant yourself the power that the statute gives to a judge. Again, I don't need to hear your answer to this question, I'm just suggesting it as one you should ask a lawyer.

Edited November 12, 2019 at 06:18 PM by Atul Kapur

[Andrew Mowery]

1 minute ago, Atul Kapur said:

Concentrate on the first three words: "in voluntary societies".

I'm not sure that an HOA is a voluntary society. As I understand it, membership requires you to have a home in the area under the HOA's jurisdiction and, I suppose, having a home in that jurisdiction gives you the automatic right of membership in the HOA. Frankly, I don't want to hear the answer to this question. I am just raising it as one that your analysis needs to consider and that you should get legal advice about.

Also, I question your description of your HOA as an "alternative adjudicator", and your assumption that you can grant yourself the power that the statute gives to a judge. Again, I don't need to hear your answer to this question, I'm just suggesting it as one you should ask a lawyer.

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. 

[Atul Kapur]

4 minutes ago, Andrew Mowery said:

Yes, that's a GREAT question for the attorney. Better yet, for the community as a whole. 

Agreed. But, I respectfully suggest, not one for this forum on RONR and parliamentary procedure.

[Andrew Mowery]

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. 

[Guest Zev]

No disrespect, Mr. Mowery, but you did not answer my question.

If I read this thread correctly, it appears as though the board has some agenda that propels them into all this confusion and angst. The solution, according to your view, is to replace this board with a board that is friendlier to yours, and your friend's objectives. There is nothing wrong with this. The problem is getting rid of the members on this board without an expensive legal battle. Why subject yourself to all this trouble?

My suggestion to you is to change your HOA's bylaws, if permitted by the Colorado statutes, and do away with the board entirely and govern your HOA by main motions directly from the assembly which would be the sole and highest authority of this organization. In the end there is nothing that any group can hijack and create trouble and the problem disappears into thin air for the rest of eternity. What is wrong with that?

[Andrew Mowery]

17 minutes ago, Guest Zev said:

No disrespect, Mr. Mowery, but you did not answer my question.

If I read this thread correctly, it appears as though the board has some agenda that propels them into all this confusion and angst. The solution, according to your view, is to replace this board with a board that is friendlier to yours, and your friend's objectives. There is nothing wrong with this. The problem is getting rid of the members on this board without an expensive legal battle. Why subject yourself to all this trouble?

My suggestion to you is to change your HOA's bylaws, if permitted by the Colorado statutes, and do away with the board entirely and govern your HOA by main motions directly from the assembly which would be the sole and highest authority of this organization. In the end there is nothing that any group can hijack and create trouble and the problem disappears into thin air for the rest of eternity. What is wrong with that?

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

[Guest Zev]

Thank you very much for the clarification. You seem to have the situation well in hand. Good luck.

[Andrew Mowery]

On 11/12/2019 at 10:36 AM, Josh Martin said:

 

[Andrew Mowery]

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.

[jstackpo]

1 hour ago, Andrew Mowery said:

Amazing what some will do to undermine democracy.

Seems to be a lot of that going around....

[Andrew Mowery]

On 11/14/2019 at 6:31 PM, jstackpo said:

Seems to be a lot of that going around....

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.