The Poudre Overlook HOA (POHOA) Board of Directors finally replied to the January 17th Formal Complaint on February 1, 2024. The response could be deemed cryptic, meaningless, or a bold statement that the Board is above the law – or all of the above.
One problem with the response is that there appears to be an underlying vote on the complaint being “errant”. The Covenant Enforcement Policy directs the Board, upon receiving a written complaint of any non-compliance with the POHOA Governing Documents to perform impartial fact-finding to determine whether or not the complaint has a valid basis.
But, the 2/1/24 Response attempts to simultaneously say that they made a factual determination AND that the requirement to make a factual determination does not apply. The Board’s assertion that it lacks the mandate to engage in fact-finding contradicts the requirements set forth in our governing documents and Colorado law. The Board’s assertion that it lacks the mandate to follow its Covenant Enforcement Policy while simultaneously determining the complaint to be “errant” without engaging in the prescribed fact-finding process may illustrate a form of circular logic or a logical fallacy.Specifically, this situation could exemplify the fallacy of begging the question (petitio principii), where the conclusion that the complaint is “errant” is assumed in the premise without any actual evidence from the required fact-finding process.
The cryptic response leaves open to interpretation several matters, including:
- The appearance that the POHOA Board believes that no jurisdiction exists whatsoever for receiving complaints, determining facts impartially, or executing any enforcement policy when it is the Board or individual Directors failing to strictly or even substantially follow the POHOA Governing Documents.
- That the POHOA Board has or believes it has some form of “absolute immunity” from any allegation of non-compliance with the Governing Documents. Such an arrangement might be fairly described as an “Above The Law” attitude and belief.
- That no internal process exists within the POHOA Governance Framework for investigation or adjudication of any claims that the POHOA Board or Individual Directors is not in compliance with CCIOA, The Non-Profit Act, or even HUD/FHA laws or rules (or Federal Laws).
- The POHOA Board appears to claim that it has no duty to describe, notify, or even imagine a process or need for a process for investigating or adjudicating such Complaints, even if the POHOA Governing Documents are deficient in reference, description, or even inference of the existence of such a process.
- That a homeowner that attempts to inform the party or parties of their non-compliance who errs in making an allegation is somehow themselves in the act of something that is either bad faith, “combative”, “harassment”, or at the very least, a failure on the part of the homeowner to themselves follow the governing documents.
On 2/5/24, the POHOA Board was sent another follow-up email to urge clarification and action, because it does not appear possible to determine the complaint is “errant” without a fact-finding process, therefore, if there is a dispute over the veracity of any of the alleged facts, it is necessary to be transparent about the review process, and the factual evidence that counters the alleged facts in the complaint.
While it was clearly stated in the complaint process that the POHOA Board would be best advised to appoint an independent committee to perform the impartial fact-finding, it appears that they have chosen to do so on their own.
The question is: Did the set up a hasty Special Board Meeting on 1/29/24 to do so?
On January 27, the Lora Ballweber posted a meeting notice on the Frontsteps website for a meeting to be held at a private residence at 2pm on a Monday afternoon. This would be the first Board Meeting to be held at a private residence since 11/8/22, which was held on the front porch of Director Jones home – also in the afternoon (noon), on Election Day of that year.
The meeting agenda is entirely within the opaque boundaries of an Executive Session, per the posted agenda.
Since the state reason is a legal matter, there is the possibility that the “dog incident” is the legal matter being discussed, as that remains unresolved as far as the homeowners have been informed.
However, we can use deductive reasoning to also observe that in order to deem the Formal Complaint “errant” and then send out a “Board” communication, a vote would need to be taken. The only two options are the meeting on 1/29/24, or an AWAM. Since no AWAM document was posted, it is likely that the Board met with absolute minimum notice (2 days) and held the meeting to avoid any questions being raised by homeowners before going into Executive Session. Transparency is just not to be expected from this POHOA Board.
If a vote was taken to determine that the complaint was “errant”, then it would appear that some form of fact-finding or at the very least, some review of the evidence was considered. Since this is the literal first step of the Covenant Enforcement Policy, it is then puzzling how they could simultaneously claim that the policy does not apply to alleged Board violations of the governing documents.
This is a jurisdictional argument. However, rather than redirecting the complainant to the “correct” process, and without stating clearly that they are dismissing the complaint, the Board has responded by simply saying they are refusing to follow the Covenant Enforcement Policy on the basis of some unexplained “error” making the Formal Complaint “errant”.
It is quite possible that the Board is essentially saying that because the POHOA Governing Documents do not have any explicit language about a process when a Director or Board is not compliant, that it is not possible to hold Directors or the Board accountable except for one avenue – a Petition for Removal.
But, this remedy is the nuclear option. If a Director, who is a volunteer and receives no training or certification, violates the Governing Documents, there should be a remedy that simply corrects the action. This is akin to having an automatic prison sentence for Jaywalking. And, since the homeowners have changed the Bylaws to automatically ban any Director who is removed for 3 years WITHOUT CAUSE, if this is the ONLY avenue for accountability, it would mean that a Director needs to be thought of or accused of the transgression, with zero due process to verify the facts of an allegation.
This is a terrible system for resolving such disputes.
It appears absurd to suggest that only Homeowners need follow the Governing Documents. While there are parts that are directed towards maintenance of the architecture and landscaping, or restrict the use of the same, the very same documents have boundaries for Directors, Officers, and Committee Members. Since the Covenant Enforcement Policy pertains to all of the Governing Documents, including policies and bylaws, any violation by any member must be reviewed under this policy as a matter of strict compliance.
In other words, the refusal to follow the Covenant Enforcement Policy is itself another violation of the governing documents!
While this Board may be free to dispute the Formal Complaint, they are not free to abuse the powers and authorities of their position to avoid accountability. And, to do all of this in the darkness of an Executive Session or AWAM only makes it worse.
At the same time, this is no surprise. This is exactly how Director Walker Flanary handled the Formal Complaint from May of 2019, which led to eventual filing of litigation.
I hope the Board will reconsider its response. An email has been sent, and we will probably wait another few weeks for a response to that.