RECOMMENDATION: Reject the proposed Amendment to Article VI Section 4
The POHOA Board has proposed Amending the POHOA Bylaws in a desperate attempt to prevent remote access to meetings where elections occur. They tried to reject my self-nomination on 10/14/23 to be a Director in the 12/5/23 elections on the basis of a claim that it was a “custom” to “only” accept “floor nominations”.
Because I had to leave the 12/5/23 meeting early, my self nomination, which was raised by John Tunna at the meeting in my absence, was rejected. I had written my proxy ballot with my own name on it, and regardless of the nomination process, my proxy ballot is required to be counted per Colorado State Law (citations below). The POHOA Board has no right to disenfranchise any homeowner on the basis of reasons stated thus far.
And, this amendment merely attempts to retroactively justify their actions and does nothing to actually prevent an absent candidate from either being nominated. It does not prevent a homeowner from voting for someone who is not nominated. It is clearly not attorney-reviewed and invites future disputes and litigation. It is an embarrassingly brazen attempt to change the definition of “in person” already defined in our governing documents, excluding those who wish to participate remotely.
While remote participation is an inherent right, the POHOA Board led by Lora Ballweber has prevented all remote access (including the embarrassing physical pulling of the plug on a computer giving homeowners Zoom access in October of 2022) since June of 2022. This tramples the rights of persons who both have legitimate reasons, and those who simply CHOOSE to participate remotely. No “extenuating circumstances” are required.
The issue of whether or not my nomination was made or accepted was only raised a month after the 12/5/23 election.
First, the POHOA Board tried claiming that they had no record of my self-nomination:
When it was pointed out that my email from 10/14/23 was acknowledged with a reply on 11/30/23, the non-receipt changed to this bizarre argument that we now substitute “custom” for actual CCRs, Bylaws, or Policies.
I responded with detailed information rooted in a very simple impartial fact: We don’t actually have any rules about nominations in our governing documents. None.
If we wanted to enforce rules about nominations, we would have to create some. So, if anyone is wondering why, all of a sudden, the POHOA Board is proposing that we Amend our Bylaws, it’s because they finally recognized that this simple impartial fact is true. They had no right to make a discretionary choice to refuse my self-nomination based on non-receipt (defeated by the proof of actual receipt), and they had no right to refuse refuse to accept my proxy ballot (voting for myself) at the 12/5/23 election.
I was duly elected, and that just can’t be an acceptable outcome for this POHOA Board. All they had to do was find ONE more volunteer (besides Lora’s spouse, Jeff), and they could not. They failed and cannot take responsibility for their failure – they literally and explicitly blame me. Virtually anyone in the neighborhood could have run, including the dog who bit another dog who is now “removed”, and probably got more votes than me. Now, 3 months later, it is presumed they finally found one.
So, they want a do-over.
All they would have to do is get 9 members to sign a Petition to remove me, and in all likelihood, I would have to resign, again, to avoid application of the Bylaw attempting to ban removed Directors for 3 years (which is why that Bylaw is ill-conceived as well). But, they want to skip that step and just have a single meeting because they are being lazy and have no respect for following the law and/or due process.
Rather than accepting that their botched attempts to block my participation by manipulating meetings, elections, bylaws, or policies is not working, they repeat their failures perennially. This effort is clearly not reviewed by an attorney, and has inherent self-consistency issues with other Bylaws.
Here is what is proposed:
Here are the key reasons why this Bylaws Amendment should fail:
IN-PERSON IS ALREADY DEFINED: Bylaws Article IV Section 7 defines “in-person” participation at Homeowners Members Meetings (Annual or Special). If a person participate by “telecommunications”, they are “deemed to be present in person at the meeting”. It therefore creates a conflict if the Board actively interferes with requests for remote access by refusing to provide it. Those wishing to exercise their rights to participate “in person” using “telecommunications” are disenfranchised.
TELECOMMUNICATIONS BLOCKED: The POHOA Board has made a weak excuse to avoid remote participation at the meeting – “the Association does not own a computer”. It does not matter that the Association does not “own” a computer. One can be easily lent, and a computer is not the only means of meeting the criteria in Article IV Section 7. A cell phone, which everyone has, is legitimate (and has been used in the past). And, to make it more audible, it can be paired with a Bluetooth Speaker.
This is not to mention that the Association probably should own a computer, and if we had $15k in surplus income (as a non-profit corporation, mind you), we can probably afford a $200 refurbished laptop. It would solve a number of problems with using personal computers and personal cloud accounts that have come up in the past several years.
The fact of the matter is that the POHOA Board is actively working to interfere with remote access, and is thereby denying a right to participate remotely over hardware. That itself may be a violation of the Bylaws.
AFFECTS ONLY THE NOMINATOR, NOT THE CANDIDATE: The proposed Amended Bylaw states that the person making the nomination “shall be made from the floor at the meeting (Annual Members or otherwise) in which the election is held”. This indicates or implies that the person making the nomination must be physically present to make the nomination, not the candidate themselves. There is nothing in the Amendment forbidding a person not from or on “the floor” from being nominated.
It also fails to recognize that Article IV Section 7 creates an inherent conflict of terms. If someone is participating remotely via “telecommunications”, they are “deemed to be present at the meeting”. If someone is “present at the meeting”, how could they be barred from making a nomination “from the floor”?
It makes absolutely no sense and can only lead to disputes and gives rise to potential litigation. This could not possibly be the work of an actual attorney familiar with HOA law.
AMENDMENT CANNOT BE RETROACTIVELY APPLIED: There is an inherent problem with attempts to amend Bylaws at the same meeting where Directors are removed/elected. We saw this on 1/25/23, where the Board wanted desperately to apply the Amended Bylaw, even though it was not made effective until it was signed.
In this case, however, a member is still allowed to self-nominate in advance of this election. They can notify the Board, and they can tell the community of their intentions. Nothing in the existing Bylaws prevents this. And, there is no retroactive provision to invalidate nominations made prior to the vote on the amendment, and most importantly, prior to any amendment being made effective with a Board Action (signing of the Amendment)
NOMINATIONS NOT REQUIRED FOR VOTING: While the proposed Amendment attempts to make a nomination required to make a vote for a candidate required, no such requirement is made, nor does it previously exist in the POHOA Bylaws. A nomination, at best, gives the candidate an opportunity to present their position to the voting members at the meeting. It is not a qualification or validation of candidacy. Anyone can write any name they wish on their ballot, including their own.
According to Robert’s Rules of Order Section 66, which applies since the Bylaws are silent on this subject, is explicit and plainly written:
“66.Nominations and Elections. Before proceeding to an election to fill an office it is customary to nominate one or more candidates. This nomination is not necessary when the election is by ballot or roll call, as each member may vote for any eligible person whether nominated or not. When the vote is viva voce or by rising, the nomination is like a motion to fill a blank, the different names being repeated by the chair as they are made, and then the vote is taken on each in the order in which they were nominated, until one is elected. The nomination need not be seconded. Sometimes a nominating ballot is taken in order to ascertain the preferences of the members. But in the election of the officers of a society it is more usual to have the nominations made by a committee. When the committee makes its report, which consists of a ticket, the chair asks if there are any other nominations, when they may be made from the floor. The committee’s nominations are treated just as if made by members from the floor, no vote being taken on accepting them. When the nominations are completed the assembly proceeds to the election, the voting being by any of the methods mentioned under Voting, [46], unless the by-laws prescribe a method. The usual method in permanent societies is by ballot, the balloting being continued until the offices are all filled. An election takes effect immediately if the candidate is present and does not decline, or if he is absent and has consented to his candidacy.If he is absent and has not consented to his candidacy, it takes effect when he is notified of his election, provided he does not decline immediately. After the election has taken effect and the officer or member has learned the fact, it is too late to reconsider the vote on the election. An officer-elect takes possession of his office immediately, unless the rules specify the time. In most societies it is necessary that this time be clearly designated.“
It is abundantly clear that nominations are not required, and that the candidate may be absent.
RIGHT TO VOTE: In the recent Colorado Appellate Court case, Stevens v. Brandychase II, the court cited several important aspects of HOA homeowner rights regarding voting in HOA elections. This proposed Amendmented to the POHOA Bylaws may run afoul of these legal principles:
A. CCIOA requires proxies be accepted, and ballots counted (strict compliance required)
B. The right to vote is considered fundamental because it is ultimately “preservative of all rights.” In re Hickenlooper, 2013 CO 62, ¶ 13, 312 P.3d 153, 157 (substantial compliance required)
C. Under the CCIOA, members of a common interest community, i.e., unit property owners, have the right to vote on any matter affecting the common interest community. C.R.S. § 38-33.3-310 (substantial compliance required)
D. Such members have a right to cast their vote by proxy. C.R.S. § 38-33.3-310(2)(a); see also C.R.S. § 7-127-203 (strict compliance required)
E. Unless provided for otherwise in applicable bylaws, every member entitled to vote must be provided with a written ballot. C.R.S. § 7-127(1) (substantial compliance required)
F. To invalidate the results of a past election, it must be shown that the true will of the voting public was not reflected in the results, or that statutory requirements were not substantially complied with by those responsible for calling, scheduling and conducting an election. Wilde v. City of Wheat Ridge, 967 P.2d 213 (Colo. App. 1998); Crowe v. Wheeler, 439 P.2d 50 (Colo. 1968). (substantial compliance required)
EFFECTIVE DATE OF BYLAWS: The POHOA Board received legal advice on 2/2/23 from Altitude Law regarding the fact that an Amended Bylaw is only effective once the Board signs it. Even if a vote his held on 3/19/24, the attempt to enforce it at an election held as the second item on the agenda of the same meeting runs afoul of this inescapable fact.
While it seems obvious that the Board could simply sign the piece of paper after the vote, the problem is that Board actions can only be taken two ways: At an Open Board Meeting or using Action Without A Meeting (AWAM). The meeting scheduled on 3/19/24 is neither – it is a Special Homeowners (Members) Meeting. The Board is not actually convened or in control of that meeting, although we allow our President to self-nominate herself as Chair and run/control the meeting per “custom”.
It would probably be best to consult our HOA Attorney in advance to ensure that we are not creating yet another invalid or contestable action – as we are already seeing a problem at both the 1/25/23 and 12/5/23 meetings which were not throughly conceived or vetted in advance. I am not certain there is an inherent block to what the Board is attempting to do, but there is certainly a wrong way – and presuming you can just pretend its effective by voting on it is a mistake we should have already learned from!
A. CONVENING A BOARD MEETING WITHIN A MEMBERS MEETING: One solution would be to have the Board convene in the middle of the Members Meeting. I see no clear guidance on trying to have a meeting-within-a-meeting. It’s strange, conceptually. But, perhaps an attorney could guide us into how to have a recess of one meeting, convene the Board Meeting, take the action (to sign the document), and then to return from recess of the other meeting.
What I do know from Stevens v. Brandychase II is that winging it invites disputes, and could result in an election being reversed if the rules are not followed substantially (for some rules) or strictly (for others). We shouldn’t take this lightly.
B. NOTICE OF A SPECIAL BOARD MEETING REQUIRED: What is clear is that the Board cannot take actions without giving notice in advance of the meeting. If they wish to make an Amended Bylaw effective AT the 3/19/24 Special Homeowners Meeting, they would need to make a separate announcement about that meeting 10 days in advance (because it changes our policies on elections). We’ve already passed that deadline, so that is problematic.
C. ACTION WITHOUT A MEETING: The other path would be to use an AWAM to sign the Amended Bylaw. I suppose that while sitting at the meeting, or perhaps exiting the room, they could first sign the document agreeing to a vote, and then having the vote. There’s one little hitch – if one director refuses to sign the document to have the vote, no vote can be taken.
The problem is, I am contesting the open seat as I believe I was duly elected on 12/5/23. I would not consent to that vote. And, since this is in dispute, utilizing this option runs the risk of making the adoption of the proposed amendment actually legally effective. While no such blocking maneuver exists for an Open Board Meeting, this AWAM path is not free and clear of legal obstacles.
Still, the Board could simply steamroll me and wave their magic wand – as they already have – and declare that I’m not really on the Board and then do an AWAM anyways. It’s not exactly good fiduciary duty or business judgement, but they would essentially be daring me (or anyone else) to escalate this to litigation. The cost and time factors are considerably in their favor to make such a dare successful.
DIRECTED PROXIES: A less obvious concern is the fact that by limiting nominations to those made on the floor of a meeting, those who are giving up their proxies are unable to ascertain who they wish to vote for in advance to direct their proxy towards a specific candidate. It merely empowers the proxy-holder to have “super votes”. It incentivizes apathy and non-participation, as well as it incentivizes proxy-hoarding for control and power within the Association.
It is a better system to allow nominations in advance of a meeting, to send out candidate statements with the meeting notice, and to allow that information to be factored into the decisions made by homeowners who simply cannot attend a meeting physically, and are disallowed by weak reasons from being “in person” via telecommunications. It is also a better system to allow remote access voting by counting votes 7 days after the election, with ballots returned by mail or a drop box.
While there are additional reasons why this Amended Bylaw should be voted down, there is one that is over-arching. We truly need a Committee that is not controlled by THIS Board to convene for the purpose of creating a thorough Election Policy. The Committee should make a recommendation, and perhaps the homeowners themselves should vote upon such an important change to our governing documents.
This proposed Amended Bylaw is nothing more than an attempt to justify an errant decision made in a Board email in January where they attempted to enforce a “custom” as though it was a Bylaw or Policy. It was nothing more than the OPINION of one or more of the Directors, and it didn’t stand up to informed scrutiny, so they had a knee-jerk reaction in a failed attempt to get what they want.
The proposed Amended Bylaw doesn’t even accomplish what they think it will. It just creates a new conflict within our documents, and invites disputes over interpretations of the words and intentions of these Board members. It is not a community decision.
I urge the homeowners of POHOA to vote no on this Amended Bylaw, and to consider participating in some way to create an actual Election Policy that addresses all concerns of all homeowners – even if they are in some sort of minority in this community.
