Although I suspected it might be the case, as I reported in my article on 12/6/23, I never expected the verifiable proof to be produced just a few hours later. Or, that it would fully vindicate me on the dispute over whether or not the Amended Bylaw trying to ban removed Directors for 3 years could be enforced on me when I had clearly resigned with immediate effect per Bylaws Article IV Section 6(a)(b) a week earlier.
From that article:
Prior to publishing, I wrote to the POHOA Board asking for resolution of the dispute prior to publishing. They could have resolved this dispute in January or February, and they had all the information they needed no later than 2/2/23. Instead, they sent out an email that they KNEW would be received by uninvolved homeowners to interpret the 1/25/23 meeting as having successfully removed me and banned me for 3 years. It is one thing to do so ignorantly, and the Business Judgement Rule preserves the indemnity of Directors when they simply don’t know what they are doing. But, when they act in a “wanton and willful manner”, there are legal consequences.
But, we also have the unforced error of the spouse of a Director, Gloria Jones, who has also been on the Board twice herself, who is treated as an authority on the matter at the 12/5/23 Annual Homeowner’s Meeting. When John Tunna reminded the Board that they had received legal advice telling them that the effective date of an Amended Bylaw is WHEN IT IS SIGNED, Gloria Jones insisted that, no, it was when the vote was taken.
Again, if Gloria Jones is ignorant of an objective fact, she is free to share her ignorance at an open meeting as a matter of rights. But, this is different. Not only is she the spouse of a Director, many of us suspect that she’s a Shaddow Director, who is actually operating in tandem with Clay Jones. It raises the question about whether she, herself, was looped in on the BONA FIDE LEGAL ADVICE that was received BEFORE the Board, including her husband, chose to send out a cynical email on 2/3/23 pretending that validating the Petitioners’ intent isn’t something the Board could or even should counter with objective facts. It’s not just semantics.
Here is the email from John Tunna to the Board yesterday, which I was cc’d on:
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Open in new tab The significance of this email cannot be overstated. On February 2 and 3, the Board took significant actions that were INFORMED. The Business Judgment Rule does not preserve indemnity for Directors when they knew, or should have known, the impropriety of their actions.
I wrote on this blog about this as far back as November of 2019 in this article. I cited Winzenburg, Lee, Purvis, and Payne and their article: FIDUCIARY DUTY OF BOARD MEMBERS AN OVERVIEW
How can President Ballweber, and Directors Jones and Flanary claim they were acting in “good faith”, when it is clear that they took a class with Altitude Law, and the instructor, one of the biggest names in HOA Law in Colorado (Alina Gilbert), told them in writing that the effective date was when it was signed, but then months later rely upon Gloria Jones (spouse of a Director, and not an attorney) to justify an application of that Bylaw retroactively to the date of the vote?
President Ballweber proffered some mumbo jumbo rationale to punt the decision back to the homeowners, declaring at the 12/5/23 meeting that it wasn’t really her decision, but rather it was the decision “of the homeowners” citing their obvious intent to ban me. But, that’s not really relevant, or how the law works. She she know, or at least her husband, who is an attorney (who now joins his spouse on the Board), should have known this was a no-no. It’s also legally absurd because: The Association is a Non-Profit Corporation. It’s the entity here, and the job of Directors is to protect the entity. It is not the job of the members to do so – they elect Directors to do that job. Which is why Winzenburg, Lee, Purvis, and Payne put this information in an article about Fiduciary Duty.
When Directors fail to perform their Fiduciary Duty in a wanton & willful manner, they lose the personal legal protections that are described in the governing documents, embedded in CCIOA and the Non-Profit Act, and are at the heart of the Business Judgment Rule. Also from Winzenburg, Lee, Purvis, and Payne:
The ironic thing about this is that in a row over a very poorly conceived and constructed Bylaw that attempts to ban members WITHOUT CAUSE is an usurping of powers that are limited to the Courts. The Non-Profit Act has two means of Removing Directors.
First is CRS 7-128-108, which is the process we have used several times in combination with CCIOA Section 303(8) which requires a 67% vote. Of course, we couldn’t even get that right. Some in the community, like Walker Flanary, have used the fact that I was removed (with the entire Board) in August of 2019 as a plank in their contention that I should be removed or banned in any future service. It is quite relevant to point out that the 67% was NOT met, and instead, the Association used a “majority” vote for that removal, making it, effectively, an illegal removal of the Board. But, that’s an aside.
The confusing thing about CRS 7-128-108 and CCIOA 303(8) is that it emphasizes that removal can be done without cause. In other words, no one has to even jot down a reason. You can just do it if you have sufficient votes. Or, in the case of POHOA, even if you don’t.
But, the BANNING of a member from serving as a Director REQUIRES CAUSE. No such mechanism exists in CCIOA, which is the laws specific to HOA non-profit corporations. And, there has never been a suggestion that members of HOAs SHOULD have such powers – to banish members without cause. It should be obvious on its face, but giving members such a potent weapon to use POLITICALLY leads do disputes and discords, and therefore harms community. If there’s a reason to ban – you go to court and PROVE it.
But, we have a Board, and literally 49 members of POHOA who want to try to circumvent the protections that the law affords HOA members from being subjected to such arbitrary and capricious application of politically motivated actions without basis or cause. And, at least in theory, those who are informed and have volunteered to defend the Association with Fiduciary Duty, should know not to facilitate this when the change to the Bylaws is not effective at the time, and in particular when the target has resigned. But, they did it anyways – and now crossed the line a second time on 12/5/23 by blocking a self-nomination for an open seat on the Board of Directors.
It’s so unintelligent too. John Tunna pointed out that if any of these 49 members was SO motivated to keep me off the Board, there’s an easy and extremely effective way to go about this. They nominate themselves and win the election. I’ve not received more than 5 votes in any of these elections, so by simply being a candidate, they are almost certain to win.
Now, maybe they don’t really want to serve. That’s fine. They are within their right to resign – even minutes after the meeting is adjourned. It doesn’t even matter if they announce their premeditated actions. There’s literally no law, bylaw, ccr, or anything that can stop that political gamesmanship.
But, what cannot be done is to protect an OPEN SEAT by using a questionable usurping of powers reserved for the courts with a Bylaw this probably unenforceable in the courts to attempt to ban someone who resigned in advance. Or, to claim that the members, not the Board or Directors, have a DUTY to protect THE ASSOCIATION from legal liability. That is absurd and ridiculous.
And, it gives me a claim upon which relief may be granted in a court of law. The claim is quite simple: A court can provide Declaratory Relief when there is a dispute over interpretation of the HOA governing documents. There’s no monetary damages involved. It’s a matter of a court deciding which interpetation is correct. And, with the disclosure of the email from Altitude Law by John Tunna, it is abundantly clear that the Board knew or should have known that what they did on 2/3/23 (sending out a letter telling the members I was banned) and 12/5/23 (blocking my nomination for an open Director seat) was objectively wrong. The judge can verify that my resignation was immediately effective, and that the subject Amended Bylaw was effective without any retroactive powers a week later.
My resolution to the matter to avoid having this dispute wind up in a court is simple: Admit the facts and inform the members. Oh, and seat me as a Director.
Yeah, I’m aware that they will probably create a Petition for my removal. Last year they did it within 3 days of the election. I get it. They REALLY don’t want me on the Board. But, as a matter of principle, particularly when all they had to do was get elected and resign themselves, I have zero sympathy.
We are clearly being led by Directors who think that the law does not apply to them, and that they can use their powers as they please. That’s why John Tunna resigned and will not serve again until they are no longer Directors. Others in the community feel the same way.
Therefore, I will continue to pursue FULL PARTICIPATION IN THE COMMUNITY until these individuals either accept that they can’t control the Board so that they can pretend they control who lives here, whether their dogs can live here, and abuse their powers to drive people from the community – as though it is a private country club gated community – OR, they are removed through political or court processes.
Which brings us back to CRS 7-128-109. The actual law that allows banning of members of a non-profit corporation from serving as Directors. There’s explicit reasons the court can ban persons with the power of a court order:
It is clear that the conduct of the Board in regards to concealing the legal advice from Altitude Law is dishonest. Relying upon Gloria Jones’ opinion to counter Alina Gilbert is a fraud. And, to ban a member who effectively resigned a week before the subject Amended Bylaw to preserve an open seat, when more practical means (someone else volunteers, then resigns) is available, is a clear indication of “gross abuse of authority or discretion).
Oddly and ironically, the Board of Directors has set themselves up for removal and barring of service by a Court. The only obstacle in the way is the fact that fear of retaliation means that getting 9 homeowners to put up their own money to go to court (it’s 20-30k to go to trial, which was the quote in May of 2019 before inflation) to make this happen is . . . unlikely. No one can do this individually, even if it is plainly obvious that it should.
This is why I advocate with the HOA Homeowner Rights Task Force that we need to adopt Anti-Retaliation Laws similar to the State of Nevada to protect homeowners who exercise their rights as the sole means of enforcing compliance on HOA Boards. We have thousands of complaints per years of Boards playing these games, and there’s just no effective means of enforcement that does not put individuals at risk of financial and mental health harms.
I’ve endured this for 5 years now, and those observing it, whether they love or hate me, don’t want to exchange places with me. You get isolated, and, I’m told most normal people just sell their homes and move. I KNOW that is what Walker and Irve have intended this entire time, and are actively doing this to other homeowners as we speak. And, yet, the gaslight everyone by claiming that enforcement of the rules on them makes them the victim, and that they won’t be bullied or pushed around.
Walker Flanary, at the 12/5/23 meeting literally said out loud that it is the policy of the POHOA Board of Directors to not be “pushed around by Mr. Mowery”.
Sorry, Walker. Citing the law and demanding that you follow it isn’t pushing you around. It’s making you look at your behavior by holding up a mirror, and presenting receipts. And, in this case, if you can’t admit that you, Lora, and Clay knew that the Amended Bylaws could not be applied to me on 2/2/23, you are simply being shown for what you are: A liar and hypocrite.
John Tunna suggests that the POHOA Board may choose to dispute Alina Gilbert’s interpretation, which is their right. It is true, it is just one opinion, and another HOA attorney may dispute it and defend the Board’s actions. But, we already know that when this Board knows the HOA Attorney (Moeller Graf has confirmed that they remain our General Counsel by email in the past week) will not defend them, they avoid the review. They did this with policies passed in November. Yet another fact relevant to pursuit of CRS 7-128-109 demonstrating the criteria.
Over at the HOA Homeowner’s Rights Task Force, Alina Gilbert herself, and the other leaders of the HOA Legal Industry (of which our attorney, David Graf is a leading voice), these attorneys readily admit that HOA Boards regularly violate the law. Alina herself just recently said that if they find Directors are violating the law, they have a duty to tell them what they are doing is wrong.
The problem with the HOA Governance Model is that the incentives are reversed. The HOA model tries to replace public government with private government. If a government employee crosses the line, they are reprimanded, punished or terminated. The attorney for government has the power to initiate an HR process. In the HOA model, if the attorney pushes for compliance, and the Director or Board doesn’t want to comply, THEY FIRE THE ATTORNEY. Completely absurd, upside down, ridiculous, but accurate.
So, the attorney, who often has a fiduciary duty to the corporation or partnership they work for, has an obligation to ensure that when telling untrained volunteers that they are wrong, that they do so tenderly and in non-offensive ways to try to lure them into compliance. They literally have no power to make it happen. We often think that because an HOA General Counsel is hired, everything the Board does most be “legal”, and therefore approved, blessed, and sanctioned.
Hard stop. No. It happens ALL the time. Boards are violating the law every single day in Colorado, and the only way to stop them is . . . private litigaiton. And, the moment you file suit, you are accused of “suing your neighbors” and . . . worse. In other words, retaliation. And, it destroys community.
So, Alina Gilbert and other HOA Attorneys are asked repeatedly in the HOA Task Force and other Stakeholder processes, what, exactly can they do?
Well, if they know the Board is violating the law and failing their fiduciary duty to the Association (the non-profit corporation), and simply informing them doesn’t change their behavior, what are the supposed to do?
They terminate the relationship. That’s literally their only option, as they have no duty to persist, or to even inform or help the homeowners that are actually in the right and trying to correct the course of the ship.
We’ve seen this multiple times at POHOA. Of course, these folks who are actually refusing to comply with the law and governing documents have a different narrative: That the HOA Attorney was “harassed” into quitting. No such thing. Absolute bullshit.
Yet, we have members that have bought into this narrative, and no amount of evidence to the contrary can convince them. It is no surprise in an era where we have millions unwilling to believe the 2020 election results, and there’s probably a bit of crossover in these sets.
What will happen now? No idea. Everyone doubts that they can simply say, “point well taken“, admit the error and document it, and take the correct action and seat me on the Board. I’m self-aware of the odds. But, I am committed to documenting this for a clear purpose: to get the Colorado Legislature to act. And, that purpose has been a constant since 2018, when I first realized we have a major problem with compliance at POHOA. I remain committed to that effort so that others do not have to experience what I and thousands of other HOA homeowners endure regularly – Boards that violate the law and governing documents in a wanton and willful manner.
This email revelation is indisputable proof of wanton and willful action.