STONEWALLING: POHOA Board Faces Statutory Penalties For Withholding Documents

Amid an ongoing controversy on the Conflict of Interest Policy after allegedly electing Accounting Contractor, Jennifer Hutchinson to the POHOA Board of Directors, the Board is also refusing to answer basic questions about the 3/19/24 election itself. This includes the attempt to keep us operating like it is 1979 with our meetings and elections by passing a Bylaws Amendment that only allows “floor nominations” for the BOD. At issue is whether at least two known Directed Proxies were included in the vote count in either election.

The POHOA Board has not yet posted any results of the elections, nor has it changed the Board of Directors Roster document since it was last updated on 1/11/24. Only hearsay rumors about the election of Ms. Hutchinson have found their way out of the meeting.

The day following the election, I sent the POHOA Board an email asking questions about the results, votes, and proxies. The POHOA Board has not even acknowledged receipt of the email in nearly 2 weeks. Included was a question about what is in the POHOA contract with Ms. Hutchinson – which was a formal Document Request made on 1/28/23.

In that Document Request debate, President Lora Ballweber tried to create a new policy out of thin air that required any homeowner requesting documents send them via USPS Certified Mail. She cited CCIOA, the Colorado statutes that govern HOAs, and that she was following the POHOA Policy on document requests.

A closer examination of the POHOA policy, which has not been updated since 2014, that no such mailing requirement is actually included.

Basically, you have to fill out a form. Even the form itself has no such USPS Certified Mail requirements stated. This is the form from the 1/28/23 request for the current financial documents at the time – which was not honored over this dispute about whether USPS Certified Mail was rquired.

Now, at the time of the request, I had just resigned from the POHOA Board, and Dr. John Tunna was still a member. One of the curious things about his tenure was that while he himself is actually quite skilled in accounting, he was never allowed to access the POHOA Quickbooks accounts. For some reason, some Directors felt it was appropriate to keep the eyes of other Directors from seeing the books.

It was also disturbing that the POHOA Board refused to disclose to other Directors the bidding process for hiring Ms. Hutchinson, or even verify that other bids were in fact solicited. There does not appear to have been an actual Board decision that considered the pros and cons – even when the optics of funneling more than 10% of the HOA revenue to one homeowner might invite objective scrutiny. By all appearances, the decision was made by Treasurer Clay Jones unilaterally without any official Board vote.

How do we know this?

Well, if you review the Minutes from the POHOA Board Meetings from 2023, there’s not any mention of a vote to approve the contract.

And, if you review the AWAM Log (which has not been updated since mid-2023), there is again no mention of a Board vote or action to hire Ms. Hutchinson. Note that other contracts issued ARE actually approved by the Board.

So, how did Ms. Hutchinson start getting paid an alleged $500 per month for doing bookkeeping that she previously did for free from 2019-2022?

We apparently have a Board that wishes to be non-transparent and keep both the contract and the decision-making leading to the contract Top Secret – and are willing to run the risk of CCIOA Statutory Penalties by not responding to such requests.

The easiest way to put to rest any questions about propriety is to simply disclose the documents. But, instead, President Lora Ballweber made a speech to the Colorado HOA Homeowners Rights Task Force on 1/2/24 (which is proudly posted on the Frontsteps Website), claiming that Document Requests are “fishing expeditions”. This is nothing more than a stone in the stonewall to avoid inspection and scrutiny of the Board’s fiduciary decisions – and when it is 10% of the HOA Revenue, it is certainly not nitpicking!

So, President Ballweber decided, without actually amending our policies, to enforce an unwritten “board policy”, which neither she nor the POHOA Board has a right to create or enforce. In fact, the Board is required to follow the Policy for creating Policies, which they have done several times – so it’s not a matter of ignorance. Requiring USPS Certified Mail is to create a burden, inconvenience, and unnecessary expense to deter from Document Requests being made.

After making the request on 1/28/23, I decided to only send reminders periodically because complying with her demand might have the appearance of legitimizing her made-up “board policy”.

Here in 2024, however, after allegedly electing Ms. Hutchinson while she is still getting all this money from us, I decided to make another formal Document Request, as the first one had aged more than 1 year (beyond the statute of limitations for action on CCIOA Section 317 Paragraph 4.5). And, because she was now allegedly a Director, the question about signing the Conflict of Interest Policy carried even more weight.

Once again, President Lora Ballweber raised the requirement of having to send in the request via USPS Certified Mail. In response, I had to show her that Section 317 of CCIOA has two sections that are applicable. One is the actual requirements, the other is a new section, added only in 2021 (7 years after our policy was drafted, but never updated) that spells out the requirements for being awarded statutory penalties if an HOA Board delays or refuses a document request.

An HOA may require that a document request is made in writing, that the documents be described with “reasonable particularity”, and that in-person reviews be done during normal business hours. That’s it. That’s the only CCIOA “requirements”.

What was added in 2021 was Paragraph 4.5, which was an attempt by the legislature to create an incentive for HOA Boards to STOP STONEWALLING. I know, because I worked with the sponsor of HB21-1229, Rep. Brianna Titone, and was part of the stake holding and testimony phases of that bill.

So, this section outlines how, if an HOA doesn’t respond within 11 business days, a $50 per day penalty (maximized to $500) could be obtained through court action if the documents had still not been produced after 30 days. It is a means of last resort, not a prerequisite for ALL document requests.

And, this is where President Lora Ballweber’s stonewalling gambit creates a pretty ugly picture if this ever went to court. You see, the right to see these documents is an actual right outlined in the same section 317 of CCIOA.

Note that the last line of Paragraph 1 is “for purposes of document retention and production to owners”. There is no discretionary authority by President Ballweber to “consider” releasing them, or to withhold them altogether. They must be produced, period.

And, to be clear, Ms. Hutchinson’s contract falls explicitly under Section 317 Paragraph 1(l):

The HOA has no right to label them “fishing expeditions”, or to retaliate against those who exercise their rights to review HOA documents. And, let’s be clear, it is retaliation when the Board votes to create a document and read it into the permanent record of the Colorado State government. The intent is to intimidate me from making future document requests, plain and simple.

So, when I submitted my request on 3/25/24, I got this response from President Ballweber:

Note that she is only promising to “consider” the request, as if there is any power to actually deny it. No such power or authority exists!

This time, however, I am no longer giving the HOA time to reconsider and comply. After waiting over one year for her to comply with the 1/28/23 request, it is clear that no such recognition of being on the wrong side of this compliance argument is forthcoming. It is time to exercise Section 317 Paragraph 4.5 and send in the request.

While I had sent one request via Certified Mail on 3/27, I discovered that the request may need to be modified with one additional item, so it was printed and resent a second time on 3/29 (envelope/receipt above).

You see, the issue of whether or not there is a conflict of interest rests upon another fact – was Ms. Hutchinson actually elected. And, after more than a week since the election, there’s still not one word about the results on the Frontsteps website, even though the results of the Bylaws Amendments vote was indicated on 3/20/24 by uploading the new amendment less than 12 hours later. It’s not an oversight, it is a deliberate omission.

Therefore, it would actually be necessary to review the actual votes of the election. And, this leads us back to whether or not Ms. Hutchinson was nominated “from the floor”, and whether the fact that at least 2 Directed Proxies made it a “contested election” requiring secret paper ballots.

Another interesting feature of CCIOA Section 317 is that the ballots and proxies are actually required for both retention and production (to document requests). From Paragraph 1(n):

So, the 3/28/24 document request now includes those documents so that we are not then seeing President Ballweber play stonewalling games about the non-existence of such documents. Whether a secret ballot was or was not used, the proxy documents must be retained and produced, period.

This, in turn, will let the rest of us know if there were only a handful of people in the room, with the rest of the votes being undirected proxies, which Director Walker Flanary is known to carry 17-24 to almost every meeting with a vote. It is one of the main reasons why Proxy Hoarding is an important issue for POHOA, and why many have simply stopped participating because of short-notice meetings where such election manipulations often succeed.

The next anticipate step, which we have seen before in an August 2022 document request, is for Director Clay Jones to announce that in order to see the documents, I must pay HUNDREDS of dollars because the HOA chooses to then hire an outside firm to go “find” the documents and then print them. Again, no such right to charge excessive fees is stated in the POHOA governing documents, nor is it supported by CCIOA or the Colorado Non-Profit Act. It’s just another stonewalling technique.

The question would then turn to whether a court would mandate production of the documents without paying an unjustified fee, or whether it would require me to pay first.

One clue is also included in CCIOA – the right to receive the documents electronically:

Since my document requests providing the documents free of charge by sending the digital copies, exercising CCIOA Section 317 Paragraph 5, it would then be a stretch for President Lora Ballweber or Treasurer Jones to subsequently justify charging fees – when the documents could simply be attached to an email.

Yet another game President Ballweber could play is non-receipt of the USPS Certified Mail request. A delay tactic, in practice. The problem for that strategy is that CCIOA only requires that the request be SENT, not received. And, since a digital copy has been emailed, and President Ballweber has already responded to the email, the question as to whether they have knowledge of what the request is becomes moot.

So, why not simply email the documents since 3/27, when the first USPS Certified Mail receipt was sent to them?

Well, that leads me into speculative territory to attempt to understand why there is such an amazing effort to keep these documents hidden. When you factor in the fact that former Director Tunna was prevented from accessing Quickbooks, that there was no open Board Meeting vote, that there was no Action Without A Meeting (AWAM) vote, and the fact that the only reason we know about this is because it was said out loud at a meeting (but recordings are not allowed!), the alleged contract with Ms. Hutchinson MAY NOT ACTUALLY EXIST.

It would be a very foolish thing to write $500 checks monthly to a homeowner without a contract, but the extreme secrecy could be explained by the fact that we are paying someone to do work (that they used to do for free) without an actual written agreement. I mean, I’m starting to wonder if there’s even an email trail (which would be required to be disclosed if there was an AWAM decision).

Could this be the reason President Ballweber would go to these extreme lengths to avoid production of a document that should be on one of their computer hard drives (and we know the HOA “owns no computers” because they said so in their last announcement, which brings up the issue of doing all of this from personal computers)?

Well, we shall know 11 business days from now, at least, whether they are willing to risk daily statutory penalties, while claiming the are victims of a “threat of litigation”, when CCIOA puts homeowners in the position of being the sole enforcers of these state laws. This is why it becomes a poster child for HOA stonewalling, and a case study in whether or not these statutes are sufficient to stop the game playing by Boards led by people like Lora Ballweber.