DOG FIGHT: POHOA Board Hires Moeller Graf To Change Policies In Advance Of Likely Dog Enforcement Actions

In a clear departure from past POHOA Board practices, an AWAM was actually published without any homeowners having to attempt to pry the document from the Board with a Document Request. This is a great sign that the hope created with fresh participation from new Directors is having a positive effect. It appears the Board is poised to move forward on attempt to enforce POHOA Covenants on homeowners who have a dog that bit another dog on 9/22/22 and have hired a law firm. It also appears that we will be having a meeting on 3/7/23 to change several policies in order to lay groundwork for this enforcement (because we failed to comply with HB22-1137 by indefinitely tabling the issue since the 9/13/22 meeting).

On Tuesday, February 14, 2023, Director Tunna uploaded the AWAM document to the Frontsteps website. For those unfamiliar, you can track upload activity by sorting the documents page by reverse order date to see anything new that has been uploaded.

Among recent documents displaying a new transparency from the Board, there has finally been a signed Conflict of Interest Policy (which may address our Qanon Treasurer gold-coin promotion activities at meetings), an attempt at establishment of the 3-year-ban Amendment language to our Bylaws (which has yet to be reviewed by attorneys), and an attempt to ignore the fact that Director Mowery resigned properly per our Bylaws in advance of an ill-advised vote to remove him with documentation that the vote occurred. Most in the community would already know about the latter two actions as they were mailed via USPS on 2/3/23 to all homeowners, but the AWAM was not announced in that manner, nor was there any email bulletin.

The Board has improved, but continues to publish information passively on the Frontsteps website, which they know very few visit or have a reason to visit to comply as minimally as possible with CCIOA, Non-Profit Act, and Open Meetings laws in Colorado. It remains true that in April of 2022, the Colorado Court of Appeals ruled that “minimum compliance” is insufficient to meet criteria for “fair and reasonable” notice, which is why we may see an HOA Task Force move forward via HB23-1105 to study these practices and make changes to CCIOA in order to prevent such gaming of the system.

Here is the body of the AWAM:

The AWAM published on 2/14/23 reveals three important facts.

• POHOA has hired Moeller Graf, who are HOA Attorneys
• POHOA will be updating policies, plural
• POHOA intends to enforce Covenants related to the “dog incident”

As for the hiring of Moeller Graf, I welcome the news, personally. Having met David Graf in person regarding legislative updates to CCIOA, I believe he is a leader in Colorado (with credentials to match), and is fair-minded in his approach to HOA governance. While we disagree on some legislative topics, we have found common ground and I look forward to his leadership and participation in legislative changes to CCIOA. Some may be aware that he has also published a short video regarding FHA Law surrounding Quid Pro Quo and Hostile Environment Harassment, where he challenges the notion and policy put forth by former Directors Hutchinson and Tuminello that “we never got involved in neighbor-to-neighbor kerfuffles”. I hope we tackle reversing that policy in some future policy updates.

Since the AWAM is short and direct, there is a bit of reading the tea leaves necessary to see what is coming down the pike. I am therefore writing about this topic somewhat speculatively based upon what is known in the open record, as well as my prior experiences serving on the Board in 2022 and 2023.

At the 9/13/22 Special Board Meeting, Director Ballweber attempted to put in place 4 policies for compliance with various legislative changes to CCIOA. Instead of doing the work of changing our existing policies, EXTRA policies were created. This creates conflicts and confusion in our policies because both Directors and Homeowners have to understand that the new policy supersedes some elements of other policies (or Bylaws or CCRs). You can watch how it was deliberated in this video of the meeting.

I protested the approach at the meeting, but because Director Clay Jones simply rubber-stamps anything Director Ballweber wishes (he has never voted in opposition of her), my vote was neutralized, with Director Ballweber essentially approving her own work. When asked who authored the policies and whether it was either an attorney or reviewed by an attorney, she was coy in response. I suspected that either her husband (a water attorney) or Mr. Flanary (a former DUI defense attorney) was the actual author. Some homeowners spoke against the attempt to create these extraneous policies, but those comments were summarily ignored with my own. Of the proposed policies, 3 of the 4 were passed and are now the policies of POHOA. See the proposed policy below.

But, the policy to comply with HB22-1137 was not approved. There was one element that was a non-starter for me: An attempt to make the notice period for covenant or rules violations 7 days with a clause that was NOT based upon language in bill (in spite of Director Ballweber’s insistence that it was, and a refusal to cite the exact portion of the statute). As a result, the motion to pass the policy was tabled, and the policy was not allowed to either be addressed by AWAM (which Director Clay Jones thought for some odd reason was disallowed), or on the agenda of any future meeting (before I was removed).

As a result of this indefinite tabling (which is a way to kill a bill in the legislature, by the way), what Director Ballweber and Director Jones failed to realize is that they were preventing ANY legal enforcement actions on ANY covenant or rule at POHOA for as long as we were not compliant with HB22-1137. While serving on the Board through 10/20/22, and afterwards, I communicated to them that compliance was a necessary component to effective legal enforcement actions – and they just would not listen. I suspected that Mr. Flanary, who is now a Director, was whispering to them (if not directing them) to intentionally ignore the HB22-1137 requirements because at every single meeting he referred to the new laws as “convoluted” or some other derogatory term.

It is a well-known fact that CAI/CLAC (Community Associations Institute and the Colorado Legislative Action Committee) have been actively campaigning since HB22-1137 was passed to repeal the bill or elements of the bill. It is quite likely that Mr. Flanary or our Directors have been influenced by this TRADE ORGANIZATION that wishes for homeowner rights to be defeated because they can no longer create profit-centers that are based upon aggressive and unreasonable enforcement of covenants and rules escalating into exorbitant legal fees, interest, and other Financial Menacing of homeowners.

Prior to my RESIGNATION from the Board on 1/25/23 (the Bylaws confirm that a resignation trumps the removal action), I had reached out to Altitude Law regarding enforcement of the covenants regarding vicious/dangerous dogs. In an email response, they made it clear that no enforcement was possible without first revising several policies to comply with HB22-1137.

It reinforced what I already knew: That an attempt by Director Ballweber to circumvent this with a stand-alone policy was wrong-headed, and that without doing so, there would be no dog-removal, as some homeowners have expressed explicitly.

So, the AWAM to me communicates that the Board likely attempted to find ANY attorney would would go along with Director Ballweber (and probably Director Flanary and Director Jones) efforts to ignore and/or avoid compliance with HB22-1137. Having found none that would work with them until they did comply, they fortunately chose attorneys who recommended updating policies.

When do POHOA Homeowners get to see these policies?

Again, if past performance predicts the future, Director Ballweber, who is still BOTH the President AND Secretary, will likely delay release of the language until 10 days prior to the meeting on 3/7. She will not post anything on the Frontsteps website 10 days in advance, but rather send out USPS First Class Mail, which will arrive 3-4 days later (due to the weekend), giving homeowners a week or less to review, study, or even ask question in advance of the meeting. This will be a MAJOR change to our policies, and it is quite likely that either the Board already has this language in hand, or will in the coming days. Most likely it is an off-the-shelf template (that is what Altitude Law offered for a flat fee, see above) that will need to be customized so that we don’t lose elements of our existing policies – such as the “shall” requirement to use Robert’s Rules of Order.

But, the notice of the meeting on Tuesday 3/7/23 was silently posted on the Frontsteps website earlier in the week. I believe the duration is in error, and the meeting is not really a month long. We can hope, at least.

Some may ask whether I would have made it known to Director Ballweber while serving what, exactly, were the policies I felt needed to be updated, and what exactly I felt was the need for an update to each. In fact I did so on 12/30/22 by email, and the only Director that responded with Director Tunna who identified an additional policy that was required by CCIOA but was never published while former Director Tuminello was serving in 2014. That policy is the one that addresses disputes between homeowners and the Board, and tells a homeowner exactly how they should communicate non-compliance to the Board without being accused of “harassment”. It is quite curious that Mr. Tuminello ignored this requirement when it was his duty, and then how several Directors have refused to address Formal Complaints under the guise that they are victims of harassment.

Hopefully Moeller Graf will recognize this deficiency in our policies, and we will also finally get us compliant with CCIOA and HB22-1137. It would be nice to recognize that homeowners are the only oversight for HOA Boards compliance with CCIOA, and that an HOA Attorney, who represents the Association, is in a perpetual conflict of interest because if they tell a Board they aren’t complying with the law it risks them getting fired (and a Board shopping for one that will let them continue rogue practices). It’s a fundamental design-flaw in CCIOA that will hopefully be addressed with the HOA Task Force if HB23-1105 passes. It’s no surprise, then, that CAI-CLAC opposes that legislation.

As for what happens on enforcement of the covenants to remove a dog, I took a class with Altitude Law on 2/16/23 that was quite informative on the subject. The educator, Debra Oppenheimer, identified several ways that homeowners can utilized Service Animals and Emotional Support Animals (ESAs) to circumvent enforcement. While these tactics may delay and increase the expense of enforcement, she expressed confidence in the fact that ultimately, if an HOA wishes to drive a dog out of someone’e home, they ultimately can and will. It may just drag on for a long time and get expensive.

This was the PowerPoint from the presentation (below). You can listen and see the same slides via Altitude’s YouTube Channel for this class.

It is also important to note that there is current legislation being considered that may limit or bar Housing Providers as it relates to regulating dogs. This is HB23-1068 Pet Animal Ownership In Housing. While HOAs are not specifically named in the bill, there is talk of amending bill in the coming weeks. And, while HOAs are not named, it does affect anyone renting a property, which is already happening within POHOA. As written, it not affect POHOA, but a careful eye should be kept on the matter, as there was nearly a bill in 2018 that barred HOAs from regulating dog breeds altogether (which is in our convenants).

My sense is that the meeting on March 7 will create the foundation for enforcement of our covenants and be a first step towards removal of the dog from POHOA that was involved in the 9/22/22 “dog incident”. It is important to note that one of the avenues spoken about in Altitude Law’s class was to have an HOA essentially make a complaint as an association to Animal Control. This is an approach I had not imagined, as the HOA is not really a party to the incident directly. However, given that this would allow both the Animal Control enforcement officers professional discretion, and then action by the District Attorney vs. private lawsuit, it may be an avenue for consideration in future incidents. It is unknown if it is already too late for such action in the current situation.

As for the policies that we may pass on March 7, I think, as I express in my 12/30/22 email to the Board (as a Board member) that we should give homeowners 30 days to consider any changes to our policies. I think it is unfair and unreasonable to use minimum compliance as an excuse, and to essentially disable homeowners from being able to research and consider new policies that may affect them in the future in a comprehensive and thoughtful manner. I encourage the Board to release any drafts (since they are based on templates anyways) so that we have more time to comment in advance of the meeting.