POHOA Board Votes Unanimously To Keep Document Revision Draft SECRET!

At the 5/12/22 POHOA Board Meeting, the Board decided in a 3-0 vote .Directors Jones and Brucker abstaining, because they voted as members of the Document Revision Committee, with two of the actual members of that committee abstaining.

That might be confusing to those not paying close attention. The Document Revision Committee has 5 members, but they are not allowed to operate independently of the Board. Instead, in a very odd arrangement, 2 Board members, Director Jones (who is also President of the Association) and Director Brucker, are additional members of the Committee. Somehow, Director Hutchinson, who said she was a co-something of the Committee a few meetings back, is present at most meetings, but her official role and capacity is poorly understood. And, they don’t respond to questions nor do they have anything posted on the website that shows the organizational chart.

The Meeting Minutes from 4/5/22, which are surprisingly and thankfully detailed, give bullet points for the summary of various comments by several of the Board/Committee Members. As you can see, Committee Member Abrams and Committee Member Ballweber appear to have made a motion to release the documents with zealous advocacy of the motion.

What is unclear is what happened next. While there have been other minor votes on this Committee, it appears that two of the Committee Members (J. Babbitt and M. Budelman – who is supposed to be the Chair) ABSTAINED from the vote. So, while the actual vote of Committee Members was 2-1 in favor of releasing the draft documents, two Board Members swoop in to dominate the committee and reverse that outcome in a 3-2 vote.

Mr. Flanary, a homeowner at POHOA, wrote to the Board asking to exercise the rights in CCR Article IX Section 7 to appeal this decision to the Board. Of course, that creates a conflict of interest because two of the Board Members have already voted at the Committee level (a good reason this is a bad practice vs. best practice). Unsurprisingly, the remaining 3 voted unanimously.

The reason it is unsurprising is that the POHOA Board, since 1/1/21 (and likely as far back as 2019, with a different President who resigned after a Hostile Environment Harassment incident). The Board voted unanimously at least 49 times since then. And, when you exclude votes to approve meeting minutes, this Board has voted by email without following our governing document’s Bylaws requirements 18 times, representing about 43% of the Association’s business.

Prior to the 5/12/22 meetings, we knew about some of the Actions Without A Meeting (AWAMs), as they had been noted in the meeting minutes. However, in a request for documents made in April, we’ve learned that the Board was not following the governing documents – the actions were basically just done with email votes, and did not follow the requirement to get signatures.

Our documents say this:

POHOA Bylaws Article VII Section 2(c):
“No action taken pursuant to this section shall be effective unless writings describing the action taken and otherwise satisfying the requirements of subsection (a) herinabove, signed by all directors and not revoked pursuant to subsection (d) of this section, are received by the Association. Any such writing may be received by the Association by electronically transmitted facsimile or other form of wire or wireless communication providing the Assocation with a complete copy of the document.”

So, at the opening of the 5/12/22 meeting, the POHOA Board cited “best practices” in other states like Utah, and claimed all they had to do was affirm their AWAMs with a sweeping up or down vote in an Open Board Meeting. And, shazam, the requirement for signatures is just . . . ignored.

I followed up with a question, fielded by Director Young. I asked how they could ignore the clear “shall be effective” requirement of Article VII Section 2(c), and she responded with something about the existence of electronic signatures. I’m not an attorney, but I’m pretty sure emails are not electronic signatures – particularly when all the records are on private email addresses that aren’t even copying the main email address for the association.

It would be one thing if this was some health, safety, or welfare emergency with imminent risk of irreparable harm. That would meet a legal standard to have an AWAM that doesn’t follow the letter of the governing documents. But, what they did was make this a pattern of doing nearly half the business of the association – with emails back and forth documenting their “yes” emails. I guess since it was always unanimous, the Board thought this was no big deal.

And, since Directors Jones and Hutchinson have made all of the Motions but one during that period, it’s clear that 3 of the 5 Board members just rubber stamp the marching orders of the two who are in full control of this association. There’s never once been a debate on any issue recorded by board members opposing the proposition of another, nor has there been an actual vote against . . . anything. At open Board Meetings or in AWAMs – well, we only have records for 5 of the 18 decisions done that way.

But, that is part of the problem. The Board isn’t giving notice in advance of these non-urgent AWAMs. In fact, they appear to time the use of some of these to specifically avoid doing business when homeowners have an opportunity to participate and comment – perhaps influencing the vote. Instead, we find out more than a year later, in some cases, what was done in secrecy – without any opportunity for homeowners to even submit written comments in advance of these vote-by-emails that aren’t even bothering to get a required signature.

We find out about all sorts of AWAMs as Director Jones rattles off a list of the dates and a vague reference to the topics, without disclosing the actual wording of the motions. The list was so long, it took several minutes to read them all.

In the end, they voted unanimously, again, to approve all of these AWAMs at once. There is no good reason to avoid having a written record, as our documents require, for the durability and continuity of our Association – which seems to change it’s mind schizophrenically every few months or years on a variety of issues demonstrating a pattern of witting or unwitting amnesia subsequently creating inconsistencies in policy or action, relatively regularly.

If this was just about technical compliance, it would be one thing. But, it’s really about the quality of the decisions being made too. And, as we will find out shortly, the decision to hire an attorney in August of 2021 in a secret AWAM following a secret Executive Session after deciding to hire Altitude Law at the 7/13/21 Board Meeting turns out to be the perfect example of why homeowner comments are necessary to steer the Association Ship away from icebergs – unnecessary expenses and liability.

And, because it appears that the Board abdicated it’s responsibility to make these decision with each Director actively seeking and sharing information with each other, it appears we let our vendor, our Community Area Manager, Trademark, make this decision for us and simply going along with their choice for reasons that appear were for the benefit of this vendor. This raises some fairly serious issues of fiduciary duty, ethics, and for the CAM, compliance with CAMICB Standards of Conduct.

We’ve learned, through document requests that were delayed 9 months and only finally fulfilled in April, that while the Association has been told VF-Law was hired to essentially review our documents and propose a Document Revision Project, in reality, they were hired because Trademark threatened to quit in July – and then followed through on their threat in November. We hired VF-Law to take action on their behalf when there was evidence of improper actions known to the Board.

It would be one thing if these actions were limited to falsifying a claim of having a policy against recording meetings to try to suppress independent documentation of meetings. It would be another if it was just the issues with contract management for snow removal (and knowledge of our actual documents) and backlot mowing that was not scheduled allowing 6-foot grasses and noxious weeds to thrive (costing the Association significant over-budget expenses). But, this was also about how Trademark *messed up* our books over the most basic foundational communication between bookkeeping parties: They failed to communicate whether our books were in Cash or Accrual Accounting.

This resulted in having no actual 2020 Annual Report, and now, the questions surrounding what appears to be $29k in losses. Director Hutchinson, our Treasurer tried explaining on 5/12/22 at the Board Meeting that part of this was due to something with buying fences. The Board has tried to explain how they thought fences were assets, but they are really expenses because they are “connected to the ground”.

But, this isn’t even the biggest controversy with Trademark. No, in fact, after VF-Law was hired (and possibly before), Trademark appears to have been given free permission to initiate legal costs without the Board’s knowledge or any vote of approval. Yeah, we let our vendor run up our legal expenses with no oversight – trusting their judgement as enormous legal expenses were created.

How enormous?

Well, in another slight-of-hand, the Board managed to keep secret these expenses by not including the costs incurred after hiring VF-Law in August of 2021 until after the 12/1/21 Annual Meeting. Then, we see a balloon of expenses that Treasurer Hutchinson understated at the 5/12/22 meeting as “a little higher than expected”. In fact, when POHOA had a $500 legal budget, this Board spent over $13k on legal expenses, with over $10k spent in December alone.

Once again, the Board failed to address reasonable questions about all of this at the 5/12/22 Board Meeting, all the while keeping two BOMBSHELL secrets under wraps. The only clue, apparently, was a claim they said “Be looking for something important in the mail.” which doesn’t even begin to describe how explosive the news would be. They knew, or should have known, it was in the best interest to disclose these things at the meeting, and deliberately decided to conceal this information – to buy themselves time to try to maintain this stranglehold on power and control of this HOA.

I’d only get a clue the next day. To be continued . . .