The Niners Case for 9 Board Members

Ever since the Special Meeting on August 27, 2019, a small group of owners led by Walker Flanary and Irve Denenberg have been advocating that the Poudre Overlook HOA Board of Directors must have 9 members. And, they must add 4 additional members from their group immediately in order for the community to “heal” from the removal action.

EDIT 10/25/19: Buck Hammond denies being a member of the group via email, and the paragraph above has removed his name.

On September 26th, this group hosted a meeting of “concerned neighbors” at Irve Denenberg’s home, and invited the current Board of 5 members. No notice was given to the rest of the community, nor were any invitations received by anyone not chosen by this group. Since the group has a singular purpose of having a Board of 9 persons, I’ve nicknamed them “The Niners”, since they’ve neither offered a written agenda or articulated one to anyone who has interacted with them.

According to several participants at the meeting on September 26th, The Niners were aggressive, intimidating, and threatening in their approach to the new board. They accused the board of running an illegal election of board members on 8/27/19. They also insisted that due to the fact that the election was not legal, if their demands were not met, that they might be initiating litigation to rectify the matter, and that some of the liability may fall onto current board members personally. And, worse than that, the President of the Board was told he would need to sell his home and move from the neighborhood.

EDIT 10/28/19: “One Niner stated for everyone to hear “we will take legal action against you” and no one disagreed.  Im not sure if that was against me or the Board.   Also this same Niner after the meeting was adjourned encouraged me to sell my home and move in a one on one conversation.  The next day this Niner apologized for the “please move” comment.”

Matt Clark, Board Member and HOA Association President, 10/28/19

I’ve asked several persons with direct knowledge of the meeting what, exactly and specifically, is the reason the Poudre Overlook HOA needs 9 board members. According to these persons, there hasn’t been one single reason, other than the concept of “representing our side” articulated by the Niners.

So, I’ve reached out to Walker, Irve, and Buck for comment.

EDIT 10/25/19: “I am not a member of any such “group”, once again you  may need to verify accuracy before making unfounded assertions. “

Buck Hammond via email, 10/25/19

They and all of the members of The Niners are welcome to comment, or even submit statements or articles that I will publish here to represent their views.

Irve responded on 10/29/19:
“This is not accurate.  It would be good to meet directly to discuss”
Two requests to clarify what he feels is inaccurate have gone unanswered as of 10/31/19.

Irve Denenberg via email, 10/29/19

I looked back at the 8/27/19 meeting for any indication as to why 9 persons is the right number of directors. These are the individual points of view that were articulated, in summary.

• Irve made a motion to keep the bylaws “as stated”
• Patty said the board “started with 9” [for the record, it was raised from 3 to 5 in February 2017, then 5 to 9 in November of 2017]
• The more people working, the more work gets done (Patty)
• More diversity leads to closer votes (Patty)
• It’s a good group ratio for board to community (Patty)
• Representation will be limited (Walker)
• The current wishes of the community is to have 9 board members (Walker)
• The community was not advised about having their representation limited (Walker)

So, examining the history of how we went from having 3 board members from 2003 until 2017, I discovered that, in fact, the board was actually increased improperly.

We had some odd circumstances in November of 2016, with Bill Sullivan resigning at the beginning of the meeting, creating an election of 1 board member. Buck Hammond was elected to that position. However, just after the meeting ended, Bill Tuminello resigned, creating a vacancy that was not filled by the owners at the annual meeting.

We learn from reviewing the 11/22/16 Poudre Overlook HOA Annual Meeting Minutes that there was no decision by the owners about how many board members we should have, and that there was merely a discussion of the pros and cons of 5, 7, and 9 members. And, Keith Knight was “selected” by Perry Malisani and Buck Hammond to replace Bill Tuminello.

This appears to be within the boundaries of statutes and Bylaws. Article VI Paragraph 8(b) states explicitly that the board may fill that vacancy.

However, when we get to the agenda and meeting minutes for the 2/1/17 Special Meeting, we see that the Board recommended that it be increased from 3 to 5 Board members. And, while there is nothing improper about that recommendation, the meeting minutes do not record an actual vote by the owners to make this increase – it appears we only voted in 2 new members (Maryann Goyn and Heather Phillips).

Then, when we get to the November 2017 Annual Meeting, once again, there’s no vote to increase the Board from 5 to 9, just a group vote of 4 additional board members. And, per my own recollection, it was more of a request to see if anyone was bothered if we added 4 people, all at the end of a meeting in which most people were packing up to leave.

So, prior to 8/27/19, there was never an actual vote, memorialized in our minutes (which are legal documentation), on how many board members the community wants. However, once we have that meeting, the outcome of the vote was 44-20, which is a clear majority of owners, regardless of quorum. This significantly undermines the arguments made by Walker that those absent from the meeting would not have known about such a change in advance.

But, it’s interesting to note that there’s a difference between the Colorado Nonprofit Act and our Bylaws.

7-128-103. Number of directors.(1) A board of directors shall consist of one or more directors, with the number specified in, or fixed in accordance with, the bylaws.
(2) The bylaws may establish, or permit the voting members or the board of directors to establish, a range for the size of the board of directors by fixing a minimum and maximum number of directors.
If a range is established, the number of directors may be fixed or changed from time to time within the range by the voting members or the board of directors.

In our bylaws, the language is changed to exclude “or the board of directors” in Article VI Paragraph 3, which means that the Owners have the sole right to determine the number of board of directors, and may do so from “time to time”. Which basically means, for practical purposes, when either there is an Annual Meeting, or a Special Meeting.

Since the meeting on 8/27/19 was called to remove the existing Board of Directors, which had 5 members, and because that Board made no effort whatsoever to replace any of the resigning members as the Board was reduced from 9 to 5, it’s at the very least logical that the Board remained at 5 for the purpose of replacing an existing board. And, because of a 44-20 vote, in which 44 votes represents an absolute majority vs. just a majority of those attending plus proxies, it seems rock solid in terms of gauging the wishes of the community. Walker’s claim that the community as a whole wants 9 members is defeated by the outcome of that vote, which occurred after the discussion including only the points raised above were advocated by the future Niners.

So, both a review of the history of changes, the vote on 8/27/19, and the points raised by The Niners thus far leads us to examination of what, in particular, we are talking about when we discuss “representation”.

One of the key disputes I had while serving on the Board was during the April 9, 2019 Board meeting. Leaving the actual topic aside, I noted that the other board members were voting against me personally vs. the advocacy of the position I had taken. I knew this because, on that issue, I found that there was discretion, and no right vs. wrong answer. So, I simply took one side to see if any would choose to agree with me. It wasn’t that the choice was wrong, but that I was personally wrong.

And, I think this gets to the heart of the matter. From that point forward, it didn’t seem to matter what position I took – I was always wrong from their point of view. And, when we got into the months of “board conflict”, they continued to represent (particularly in an email broadcast to the community) that they were a majority bloc, implying that on all issues, they would vote one way, and myself and Ben Johnson would vote the other way.

Obviously, this was, and is absurd. Certainly, there is consensus on many issues, and there are no real “sides” that permeate every single issue. Therefore, the concept that by The Niners demanding “representation” leads to the question: On WHAT ISSUE, is your “side” not being represented?

Apparently, that question has come up in discussions with the Niners and the new Board, and there’s never an answer.

Again, I’ve reached out, and awaiting a response. Since I haven’t had a response from anyone from this group in 5 months, I’m not holding my breath. But, perhaps there’s a good reason.

Meanwhile, prior to publishing this article, I’ve also noted that the same individuals who are advocating this position are also the same persons who engaged in activities that appear to be fraudulent and/or dishonest, raising the issue of their fitness for duty. It’s my opinion that those who are not fit for duty of service to our community should not simultaneously be demanding inclusion and using an abusive approach to achieving their goals.

I will be writing additional articles on the merits of changing the size of the board, and welcome any and all comments and submissions for publication here on this website.

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