Motion to Silence a Homeowner

I had published an article on December 13, 2021 about Civility. It was accompanied, at the time, with a request to the Poudre Overlook HOA Board of Directors to consider adopting the CAI (Community Associations Institute) Civility Pledge. The Board did not respond, and instead, they had Mr. Bielli, the POHOA General Counsel send a response regarding only one part of the email.

To the Board:
I would like the current Board to respond to the following questions:

1. Has the Board ever considered the CAI Civility Pledge at any Board Meeting as an agenda item or discussion point? Why or why not?
2. Will the Board add this to the agenda of the next meeting?
3. Does the Board recognize the differences between civil discourse, politeness, and harassment? 
4. Have any Board members done any research, consulted with any experts, read any materials, or completed any classes on the subjects?
5. Does the Board now recognize that attempts to label persons or their messaging as “harassment”, “uncivil”, or any other derogatory terms are actually potentially uncivil themselves as they marginalize or silence dissenting voices without consideration of their good faith and/or legitimate perspective?
6. Has the Board or any individual members studied or presented information on the subject of “microaggressions” as part of the CCIOA requirement for ongoing education, or taken the time to read CAI’s
January 2021 paper that includes legal analysis of this topic to effect such a discussion or education?

I have written an article on the subject, and would accept your comments or rebuttals. I will edit or correct if necessary if there are any factual errors. My opinions, of course, are my opinions.
https://poudreoverlook.com/civil-discourse-civic-duty-and-civility-in-an-hoa/

My purpose and intention is to move us toward mutual agreement on how to engage in civil discourse without any actual need for legal expense or advice – and then attributing the expense to those you disagree with. I consider, in good faith, the continual references and attributions to be microaggressions, and hope you will consider stopping the practice of using coded language to refer to me. I believe the practice targets and preys upon my disability.

It should not be so difficult, and CAI offers classes, credentials, and general help for free or far less expense. It does not appear (from lack of response) that any of these options has been considered or acted upon in advance of advocacy for a 30x increase in our legal budget. I would simply like to know if you have, and if you’ve not moved forward, what is the reason not to proceed. If you haven’t, perhaps it is time to consider best practices for inclusion of those who disagree with you in public discourse, and to allow homeowners to democratically decide subjective issues in dispute. It would also require that the homeowners get more than 2 minutes of information to become educated or informed on the matter, and therefore a change in practice limiting those you disagree with to such unreasonable time limitations that are not dictated by CCIOA or the governing documents. 

I hope you can appreciate the concern and the need to consider a digital public square to effectuate such civil discourse, as this is now the common practice of many organizations, public and private, in the 21st Century (and during an ongoing pandemic). While a website and forum are not mandated by CCIOA, it certainly seems a plausible best practice supported by organizations like CAI. With the departure of Trademark, it also creates an opportunity for reconsideration of any number of platforms to create such forums via the Internet. I hope this may too become an agenda item in the near term.

I’d be happy to engage and discuss such ideas on or off the record.

Sincerely,
Andrew Mowery

The response from Mr. Bielli at VF Law:

Mr. Mowery,

The Board is in receipt of your correspondence. Thank you for the information. Please be assured that there is no intention to “code” language to make anyone feel a particular way. We are very sorry you feel this way. The Board continues to operate in the best interest of the Association and its owners to the best of its ability.

Damien Bielli

Attorney

Vial Fotheringham LLP

Now, I’m used to the Board, it’s Community Area Manager, and even the General Counsel simply avoiding answering questions. But, this should not have been a huge ask – for civility. And, not just a platitude, but a commitment via a Pledge program offered by CAI. They even give instructions on how to get community support for it. The response by the attorney is to defend . . . their intentions? Is that relevant to FHA law? (hint: it’s not)

My purpose was to stop the ad hominem attacks, microaggressions, and other types of verbal abuse that lead to Hostile Environment Harassment. This was specifically in response to Mr. Flanary’s behavior at the Annual Homeowner’s Meeting not even a month ago.

I asked them to review what I wrote, let me know if it was factually inaccurate, to consider the pledge, and to meet with me, formally or informally, on or off the record. Instead, Mr. Bielli defended the INTENTION to use “coded language” to refer to me at meetings in a defamatory and derogatory manner. It’s one of the reasons I litigated the issue in 2020, albeit unsuccessfully.

So, certainly, they would follow their own advice to “forgive and forget” any grievances with me (since that was their advocacy in 2020), and would accept the olive branch to move forward in a mutually agreeable fashion.

Instead, Mr. Tuminello, who was recruited by the POHOA Board to run against me out of fear I might win, took the floor on December 29, 2021 in the open comments section of the Board Meeting to offer a motion. He wanted me to be forbidden from ever speaking again at any Board or Annual Meeting. That’s not hyperbole. it’s literally what he proposed.

You can hear his proposal starting at about 34:19 on the recording of the meeting.

But, what was really odd was the fact that when I spoke up for myself, their priority was that I would be limited to two minutes. And, that my comments had to be limited to the meeting agenda, which they kept repeating was a single topic. If you take the time to listen to the entire meeting, there was a long list of topics they discussed. And, when Mr. Hammond spoke, he too brought up subjects that were not, in fact, on the agenda – but he didn’t get the same rebuke.

I’m clearly being treated differently. I mean, I just ran for the board as a volunteer, but I didn’t get thanked for my “volunteerism” as Mr. Hammond and Mr. Flanary were at this meeting.

But, more importantly, why is this Board avoiding putting the Civility Pledge on the agenda (and adopting it), and then letting two people make ad hominem attacks without even the slightest rebuke or any consequences?

One of the things I’ve learned in nearly 3 years of working on CCIOA legislation is that many Boards don’t realize that their behaviors fit patterns. And, one of these patterns is to have proxies that are not on the Board act as the bullies so that homeowners who are treated in this manner are then stuck in the “oh well, it’s a neighbor to neighbor kerfuffle – there’s nothing we can do”.

What concerns me is that I see signs of coordination between Mr. Tuminello (who they begged to run for the Board), and Mr. Flanary (who has been regularly behaving like this going back to meetings in 2018 – which was part of the basis of the litigation, yet they had him submit a false affidavit to CCRD). While a Civility Pledge is not a guarantee, it is at least a commitment to stop this behavior, and those who continue should at least receive a public verbal warning. This is even covered in Robert’s Rules of Order.

What Mr. Tuminello added to his comments about the lack of value to my statements or contributions at meetings is that my advocacy, in this case, is for an idea, not of my own, but one advocated by CAI – where Mr. Bielli is, in fact, a member of the Amicus Committee – which steers the CAI organization and it’s efforts to influence judges. I’ve spoken with Mr. Bielli, and I’m pretty sure he knows this is outside of acceptable boundaries. But, he’s only an advisor to the Board. So, the question is whether they are not listening to him, or whether he’s being tactful in order not to lose a client – a form of financial conflict of interest.

The underlying problem here is one that I have recently learned something by taking a 2-hour class with the State of Nevada’s HOA Ombudsman’s Office. The class was entirely about how to run Board and Annual Homeowner Meetings – and in spite of all I’ve learned in the past several years, i still picked up new information. One thing that Nevada does differently than Colorado is require that Boards who receive written complaints add them to the agenda of the next Board meeting. I think that should be a higher standard we adopt in POHOA.

In Nevada, if the Board does not do so, they risk censure and fines by the Ombudsman’s Office. The homeowner doesn’t have to hire an attorney – they fill out a form, and the homeowner takes no further action besides submitting documents or recordings. Oh, that was the other thing, HOAs are required to record all their meetings in Nevada – so there is never a dispute over what was said. POHOA, instead, voted earlier in 2021 to stop recording because their vendor, Trademark, the CAM, claimed to have a policy against recordings – and then it turned out to be a flat-out lie coordinated with our Board.

if this is fundamentally wrong and actionable with penalties in Nevada, why does this Board think it is acceptable or appropriate to do so in Colorado – even if the state does not have an actionable statute on its books currently? Are we desperately seeking to allow and defend such obviously offensive behavior because the Colorado legislators have failed to protect Colorado homeowners from such behavior?

If this is the case, POHOA has once again provided the Representatives I’ve been working with for 3 years with a very good reason to consider this example what it is: A pattern requiring legislative action. Clearly, the POHOA Board is locking down the agenda to avoid any topic that they disagree with, and allows members to personally attack one another to intimidate them into silence – and if that doesn’t work, they are proposing a motion to accomplish this as some “legal” voted action by an HOA Board.

I do hope that they change their minds and reconsider addition such topics (Civility Pledge and interventions in hostile environment harassment conditions) to the agenda. In the meantime, this is absolutely a reason to document the complaint with DORA and CAI. I hope they take the time to work it out before I have to spend time to make those filings. The status quo is unacceptable. And, I hope you will take the time to listen and agree.

If you agree with my concern, please make your voice heard to the board by emailing them at poudreoverlookhoa@gmail.com.

PS
If you’d like to see what I learned at the class referenced above, here’s the PowerPoint Slides. If you’ve been to POHOA meetings, see if you can identify any standards we are not meeting. Why should we not have a Better HOA by following higher standards?