ANNUAL MEETING MOTION: Should POHOA Limit Proxy Solicitation and Hoarding?

• Evidence of misleading solicitation to sign Petitions emerges
• Homeowners raised Proxy Solicitation and Hoarding Concerns at the 9/13 meeting
• Proxy Hoarding (holding more than 5% of the total votes) is a Statewide Issue

In the week prior to the 10/20/22 Special Board Meeting to remove Director Mowery, Mr. Walker Flanary spent considerable time canvassing the neighborhood to solicit Petitions and Proxies His solicitation of proxies has gone on for years, assisted in some cases by Mr. Denenberg, according to many homeowners who have had them make their pitch at their front doors or in their driveways.

On Friday October 21, one of the Petitioners who did not attend the 10/20 meeting was asked why he signed the petition. As revealed in an earlier post on this blog, that homeowner said he thought it was about the “dog incident” or “landscaping”. He said he had no idea it was related to a removal of a director, and like 2/3 of the Petition signers, did not attend the meeting. He also said he didn’t know what Mr. Flanary said at the meeting, and was unaware of the underlying points raised by Mr. Flanary.

At the 9/13/22 Meeting, Mr. Flanary advocated that such solicitation for petition signatures and proxies was some sort of an American right. And, to some degree that is true. Americans have rights to petition their government, and in some cases put issues on ballots. But, there is a process as well as checks and balances.

In recent years, Legislators have been lobbied by many homeowners to check these powers with bills like SB22-059, which attempted to limit the number of proxies any homeowner can hold as a percentage of the total number of units. Director Mowery cited this fact in his advocacy for a motion to do the same, even if no statute existed (that element of SB22-059 was amended out of the bill). His motion didn’t carry.

The original bill text can be found here: https://leg.colorado.gov/sites/default/files/documents/2022A/bills/2022a_059_01.pdf

One of the key elements to defeat Proxy Hoarding was:

“(b.7) FOR ASSOCIATIONS WITH FIFTY OR MORE UNITS, A PROXY HOLDER MAY HOLD PROXIES REPRESENTING NO MORE THAN FIVE PERCENT OF THE UNITS IN THE ASSOCIATION; EXCEPT THAT A PROXY HOLDER MAY HOLD PROXIES REPRESENTING MORE THAN FIVE PERCENT OF THE UNITS IN
THE ASSOCIATION IF SUCH PROXIES REPRESENTING GREATER THAN FIVE PERCENT OF THE UNITS ARE GRANTED SOLELY FOR THE PURPOSE OF ESTABLISHING A QUORUM TO HOLD AN ASSOCIATION MEETING.”

Unfortunately, after the bill was written, there was strong pressure from CLAC (Colorado Legislative Action Committee)and CAI (Community Association Institute). They represent attorneys to protect their attorney profits, and saw SB22-059 as a threat to HOA Board Dynasties, where Proxy Hoarders hold power for years or decades at a time. And, that cements attorney relationships that are quite profitable, and protects such Boards even if they act beyond their authorities and powers. It’s often a cozy and convenient relationship.

The provision that DID pass was the requirement that all proxies are dated and expire after 11 months. In some HOAs, Boards held permanent proxies by the hundreds, often exceeding 50% of the votes at all meetings. And, with such powers, they could prevent homeowners from ever adding to the agenda. in some cases, homeowners were literally prevented from speaking and participating – a practice attempted in POHOA in early 2021 when a motion was made to silence a homeowner permanently.

At the 9/13/22 Board Meeting we passed a policy written by Director Ballweber. But, one astute homeowner raised the issue of solicitation and proxy hoarding. Director Mowery spoke about the above information from the legislative session. And, predictably, Mr. Flanary protested that his rights would be taken away (beginning at 47:20 in the embedded segment below – turn up your volume).

Mr. Flanary’s notion of Proxies being an American right isn’t really accurate. We don’t allow people to vote on behalf of others. At best, we allow voters to carry completed ballots to drop boxes like we do in Colorado.

Because we now have evidence that Mr. Flanary solicited Petition signatures on the basis of unrelated issues. When Mr. Flanary reluctantly revealed the grievances, there were no facts – only his annoyances at past litigation, blogs, and his opinion on an insurance claim. This isn’t what was sold to Petitioners to get their signatures. It is therefore not actually fair to call his holding of proxies “representation” of those who signed the Petition. He simply said anything to get signatures to increase his voting power, and then pretended that his views were shared by others.

And, because Mr. Flanary also wielded his proxies to arbitrarily end discussion (and Director Mowery’s rebuttal prematurely) at the 10/20 meeting in collusion with the chair, it calls into question the actual legitimacy of the use of Proxies hoarded in this manner. Those people who gave proxies were not at the meeting, and therefore they didn’t really intend to give Mr. Flanary more power to end the meeting early – if “representation” is what proxies are about. That vote should only have been for those present.

These proxy and petition issues are ripe for consideration in a vote by all homeowners, and Director Mowery advocates that it be a motion at the 2022 Annual Homeowners Meeting. By limiting proxies to 4 per household, and forbidding the solicitation of proxies, we can curb some of these apparent abuses. No one should have outsized political power in POHOA using such methods.

As for the apparent tricky inducement to sign the Petition for Removal by Mr. Flanary, it may be harder to curb such practices. Adding a requirement that if Petitioners wish to remove a Board Member per CRS 7-128-108 that they also have written grievances that all Petitioners sign off on as their good-faith grievances based upon written and verifiable facts, may at least prevent the type of uninformed Kangaroo Court we witnessed on 10/20/22. Those facing removal should have a fair and reasonable opportunity to know in advance what the grievances are so that they may prepare a rebuttal with facts. It is quite similar to the 6th Amendment Rights afforded to anyone accused of wrongdoing in the United States. Homeowners should therefore base their votes on these opposing facts, not character smears without supporting facts at all.

Director Ballweber has not yet responded to an email asking for the process to add to the Annual Meeting agenda, or whether there are deadlines prior to mailing out USPS notice. She has also not responded to the notion that she should not be Chair for the entire meeting. It calls into question whether Mr. Mowery’s motion and proposal will be allowed to be aired at the meeting or called for a vote at all.