INADEQUATE NOTICE: POHOA Board Creates Apathy With Anti-Transparency Practices

UPDATE: The Board finally posted the agenda to the Frontsteps website (https://poudreoverlookhoa.frontsteps.com), at 10:00am 1/9/24. A follow-up article previewing the agenda topics will be posted soon.

I asked the POHOA Board if they had scheduled a meeting for this week by email, last week. I didn’t get a response until today – claiming it was posted on the Frontsteps website with the agenda. This turns out to be false. While there is a sandwich board set up, I’ve waited all day for the notice and agenda to be posted, and it remains blank (screenshots posted farther down in this article).

On 1/2/24, President Ballweber testified on behalf of the POHOA Board at the Colorado State HOA Homeowners Rights Task Force meeting. In her prepared statement, she made the following comment:

LORA BALLWEBER: “But a negative shift has occurred within our association because of the undue influence of a single combative homeowner who can rarely rally one or two others to his cause.

This has resulted in a hostile environment, with most homeowners now unwilling to participate in anything other than the annual meeting in order to protect themselves and families from personal attacks and potential litigation.”

Besides the fact that it is absurd logic that a homeowner attending a meeting could possibly be threatened with a lawsuit for attending or participating, no such thing has ever occurred at POHOA. Not even close. Reciting the applicable governing documents or state/federal statutes does not equate to legal threats, nor does correcting uneducated Directors (who actively avoid getting formally educated, as President Ballweber did in her testimony on 1/2/24) amount to a “personal attack”. It’s the facts, not the messenger, that embarrass those who can’t simply say “point well taken” when they are objectively or demonstrably incorrect.

The issue at hand affecting participation at meetings, which has dropped to nothing more than a handful the close personal friends or spouses of Board Members, is the lack of remote electronic access, reducing notice of meetings to 48 hours, and agendas that are cryptic with a Board refusing to decipher them in advance. Even though the facility requires booking the room 2 weeks in advance, and we are often reserving the room 3-4 weeks in advance, we are withholding this information from the vast majority of homeowners until just 48 hours before the meeting.

So, I have consistently, since 2019, recommended that we either adopt a policy for meeting notices giving homeowners at least 2 weeks notice about when and where the meeting will occur. This aligns with the verifiable fact that we have no neutral on-site facilities (we are a group of single-family homes), and that all facilities require notice for their scheduling 2 weeks in advance. There’s a reason they have the requirement (adequate preparation and staffing), and there is absolutely no good reason to hide the information from homeowners.

In addition, I’ve consistently recommended that we EMAIL homeowners with notices about the meeting as they have opted-in to receive such notices. Instead, the POHOA Board, dominated by a small group for years, has oscillated from long-term notice (>14 days) to hiding the information until just 48 hours in advance. This appears to do two things: Keep homeowners who may disagree from having adequate time to prepare to speak on agenda items, and to keep the very same persons from attending at all.

And, given the successful use of Zoom for meetings during COVID restrictions, the denial of remote electronic access, or making it so difficult as to be not functional, also lowers participation. In 2022, meetings that were hybrid had about 50/50 in-person vs. remote participation. We’ve eliminated remote participation, which, by the way, makes the concept of being sued for attending a meeting even more ridiculous (as many have been allowed to participate in this manner anonymously.

The net result is meetings that used to have dozens of people now being reduced to the Board and as few as 3-4 friends/spouses of the individual Directors. In fact, in 2023, I did not personally attend any meetings from March until November because of these factors.

What does Colorado State Law require of HOA Boards?

Not much. Here’s the relevant statutory text from The Non-Profit Act says in Section 7-128-203:

“(a) (I) (A) All regular and special meetings of the residential nonprofit corporation’s board of directors or executive committee, or any committee of the board that is authorized to take final action on the board’s behalf, must be open to attendance by all residential members or their representatives. The board shall make agendas for meetings of the board, and agendas for meetings of committees of the board that are authorized to take final action on the board’s behalf, reasonably available for examination in advance by all residential members or their representatives. If there is no formal agenda, residential members or their representatives are nonetheless entitled to a general description of the purpose of the meeting and the subject matter that will be discussed

(II) The residential nonprofit corporation is encouraged to provide all notices and agendas required by this article in electronic form, by posting on a website or otherwise, in addition to printed form. If such electronic means are available, the corporation shall provide notice of all regular and special meetings of residential members by electronic mail to all residential members who so request and who furnish the corporation with their electronic mail addresses. Electronic notice of a special meeting must be given as soon as possible but at least twenty-four hours before the meeting.“

So, we learn that this vague guidance can result in Boards who seek “minimum compliance”. This approach dates back to December of 2018, when Gloria Jones and I attended a class given at the Fort Collins Senior Center by Melissa Garcia of Altitude Law. After the class, Gloria asked whether or not just posting notice on the website was adequate, and she said it was “good”. Not the best, not recommended, but “good”. Selective quoting or references is key to manipulating less-educated homeowners about what the rules really are. And, to be honest, the rules are VERY vague and stated simply: BE REASONABLE. A subjective standard leading to endless disputes.

So, what do the POHOA Bylaws or Policies say?

Well, our new Conduct of Meetings Policy, made effective in March of 2023, is actually silent on the matter of how much notice needs to be given – or how that notice is given. Therefore, the Policy is superseded only by the general direction from Colorado Statutes to be “reasonable”.

There is, however, a clause in the POHOA Bylaws that addresses how much notice must be given for Special Board Meetings (vs. Regular Board Meetings), and according to that section, it must be 2 days. Since it is the only defined interval found after review of the Non-Profit Act, CCIOA, or our Governing Documents, certain POHOA Directors have seized upon that interval to justify using it as a way to say “we are following the law/documents”:

POHOA Bylaws Article VII Section 3(b):

“Special meetings of the board of directors shall be preceded by at least two (2) days’s notice of the date, time, and place of the meeting.“

The problem here is that REGULAR Board Meetings are usually scheduled on a quarterly or annual basis – at least in practice with some POHOA Boards. Yes, rescheduling sometimes occurs, but keeping us from knowing when a REGULAR meeting is until just 2 days before has no good faith purpose. A Special Board Meeting, in contrast, is usually reactive to some urgent circumstance making it an EXTRA meeting. But, even when its an emergency, at least 2 days notice is necessary (and we have not always found it).

Extrapolating that the rule demanding at least 2 days for a Special Meeting is therefore directive on the subject of when is “reasonable” to give notice on Regular Meetings is . . . easy to fool those who are not immersed. I’ve been working for 5 years, including while on the Board to have more specificity – either as a matter of state law, or by revising our policies. For some reason, even planning a week ahead is some type of offense to those who demand only 2-days notice. And, they NEVER explain why this is superior logic.

Here’s what Ms. Jones said on the subject on 5/28/2019:

You see, even if the Secretary (I was that Officer at the time) chooses to let people know farther in advance, Ms. Jones argued that because The Non-Profit Act does not have specificity and because she once talked to Melissa Garcia, that putting up a sandwich board and posting a notice on a website was “good”. For some reason, letting people in the 21st Century know by email (with Google Calendar or Outlook links, so they can automate keeping organized) is AVOIDED AND DENIED. Over and over and over again.

There is a REASON some POHOA Boards don’t want adequate notice. They don’t want those who disagree with them to actually participate – which was actually the case for the first 15 years of this HOA!

Here in 2024, however, I asked the POHOA Board to disclose when the next meeting was – last week. I did not get a response to the email until today, which contended that the notice was posted in the manner described by Ms. Gloria Jones. The problem is, it’s not actually true. There’s NO notice on the POHOA website at the time of this publishing, just 48 hours in advance. The calendar is blank, and the documents section hasn’t been updated with any agenda.

So, what we are left with is this magical sandwich board, which is also inadequate. Here is what it looks like for homeowners driving into the neighborhood.

It is written so small that you have to stop to try to read it. And, this is even worse at night, which is when most homeowners are seeing it at this time of year when they return from work.

So, even if this was adequate, it calls into question the fact that President Ballweber knows weeks in advance when the meetings are, and withholds the information until just 2 days before – if she remembers to update the website. Or, has trouble operating it, because she has had the problem before with posting to the website – and sending spell-checked emails, or using BCC to expose everyone’s email address.

There’s solutions for this. This website uses Mailchimp to reach subscribed readers. It’s effective and provides all necessary CAN-SPAM compliance features. President Ballweber (and President Jones in past years) absolutely refuse to allow us to use simple email to give people REASONABLE notice (like when we reserve the room, or earlier, at least 2 weeks in advance).

This is strong circumstantial evidence that there is PURPOSE to withholding notice – to deliberately cause less attendance. And, should this be determined to be true, it would then be both bad faith in fiduciary duty, and a potential wanton and willful act that could pierce individual Director indemnity.

Now, saying that out loud is then twisted into a legal threat by the POHOA Directors who wish that victimhood was persuasive with legislators – as posited by President Ballweber’s recitation of a statement signed off on by the Current Board (absent me, because my election is in dispute, apparently).

By giving testimony claiming that my pointing out the relevant statutes is a legal threat, and that such legal threats could in any possible way result in a lawsuit against homeowners that participate in a meeting, they literally asked legislators for something that would . . . well, they are short on specifics, even when given 15 minutes of Q&A follow up.

I’ll say it for them: They wish to SILENCE homeowners who dissent or disagree. Earlier in her statement, she romanticized some past period when things were civil. No such period exists. For more than 75% of the history of POHOA, that “peace” was achieved by literally hiding when the meetings were and where they were held (often in private homes, with no notice whatsoever), and even if you did catch wind, participation wasn’t considered a right. In fact, we only have to review the audio recording of the disasterous meeting on 6/13/19 when Walker Flanary called the Larimer County Sheriffs on the basis of “trespassing” to force his way at one of these meetings. THAT is the verifiable hostility, and there is objective proof.

So, the point here is that, once again, we find President Ballweber giving false and misleading statements that do not stand up to scrutiny. And, she wonders why people that are actually reasonable, like Dr. John Tunna, cannot work with such Boards and resign- when no similar personal attacks can be levied against them. The problem has been and continues to be self-appointed experts in our neighborhood who seek minimum compliance to do their work in the shaddows, and get away with it before anyone notices.

And, as a seasoned stakeholder in Colorado HOA legislative sessions, this is a pattern we find throughout Colorado HOAs. It is time for the legislature to provide instruction on notice and agendas with specificity that is strictly applied to HOA Boards including statutory claims upon which relief may be granted so that enforcement is even possible.

And, this is the final point: It’s absolutely, and I dare say ridiculous AF to propose that any homeowner could cause others to avoid attending for fear of lawsuits. The reason: The standard is the overly vague “reasonableness standard”. In other words, a field day for attorneys to run up bills that no one wants to pay, when a Court is very unlikely to make a call on it – because proving damages is damned near impossible. It’s a fools gambit.

So, the only people making other homeowners afraid of such lawsuits is . . . the POHOA Board. Once again, psychological projection from the parties that are actually confessing to what they are, in fact, doing. Over and over again.

~~~~~~~~~~~~~~~~~~~~~~~~~~~`

SOME LIGHT READING ON THE SUBJECT FROM PAST EMAILS