The Poudre Overlook HOA Annual Homeowners Meeting Minutes from the January 25, 2023 contain verifiable falsehoods, and the POHOA Board has refused to respond to emails addressing them. Right up until the last hours before the meeting. The Meeting Minutes aren’t just some newsletter, they are the official legal record of a non-profit corporation. To document falsehoods, as well as misconduct (not following the Bylaws) carries with it risk and liability that is not insignificant.
I wrote about this a few weeks ago, when it became apparent that President Ballweber was finally weighing in on the dispute over whether or not the change in our Bylaws was going to be enforced on me if I ran for either of the two open Board seats. President Ballweber said “yes”, when I repeated a direct question: Am I banned?
At the time, the Meeting Minutes were still not disclosed to the homeowners. But, the following week they were mailed out. There are obvious issues in the 5th and 6th paragraphs, but there is one action that was omitted that may be material.
While it is excusable to have a bad memory, the problem here is that this was a meeting that was video recorded – and the recording has been available since January for whomever wrote these minutes to review prior to finalizing them. Also, anyone present at the meeting (dozens of homeowners) would clearly recognize that this paragraph glosses over nearly 10 minutes of attempts to defeat my resignation with concepts that literally are “not a thing”.
While every guide on writing Meeting Minutes will tell scribes not to try to record everything that was said at a meeting, it must record any votes. And, there was a vote by the Board that is completely absent from these minutes. That is not excusable or debatable. An amendment including a record of that vote is an absolute necessity – and one that is supported by former Director, Dr. John Tunna. I spoke with him earlier today, and he called out this obvious omission as legally problematic.
But, there’s more problems than this. The Meeting Minutes attempt to forever document that my resignation fails because . . . I was “out of order”. This is a judgment that, as Chairperson of the meeting, President Lora Ballweber is allowed to make. However, it appears that she or the minutes author is attempting to convey that while that judgment may have been in error, I failed a second time by not appealing that judgment.
While the POHOA Board banned video recording of meetings per the new Meeting Policy passed in March of 2023, we can see why such records are extremely valuable to settle such disputes. The attempt to make relevant factual history disappear down the proverbial Memory Hole is as old as the concept of Dictatorship and Totalitarianism.
While we cannot require that the minutes record all the things that happened, we can in this article go through the events in sequence to discuss the context of the decision that the minutes attempt to legally document.
A. After the resignation was tendered, President Ballweber said could not proceed “in good conscience”
B. Homeowner Bob Meinenger then spoke and suggested that the resignation should not be accepted. President Ballweber then admitted what is true. Per the Bylaws, Article VI Board Of Directors Section 6(a)(b) state that a Director can resign at “any time”, and that it is “effective when the notice is received by the Association”. President Ballweber said “Because Andy IS resigned” (my emphasis):
C. Director Flanary was asked if he refuses to accept the resignation: “It’s his privilege”
D. Director Tunna: “I don’t refuse it”
E. Clay Jones attempted to assign motives in a long speech, but ultimately recognized that he did not have the votes. President Ballweber then said: “So, it’s accepted. We move on to the next item of business.”
F. After a different homeowner commented that the resignation was not at the beginning of the meeting, but in the middle of a motion, President Ballweber then changed her mind, and arrived at the conclusion that the Resignation is “out of order”. This appears to be what the Meeting Minutes are attempting to record – ignoring the previous instances of a ruling from the Chair that recognized the resignation as valid.
So, after President Ballweber ruled THREE TIMES that the resignation was effective, on the fourth attempt, she changed her mind on the basis of the concept that the Motion to Remove Andrew Mowery was already on the floor.
This is where we have to return to to the Bylaws because, in the hierarchy of documents, Robert’s Rules do not supersede the Bylaws – ever. The Bylaws are plainly written, and abundantly clear:
The Meeting Minutes, however, FALSELY claim that there was no appeal of this decision. Now, besides saying “bullshit” and “this is ridiculous”, I managed to include near the end of the segment the fact that I knew that the Bylaws weren’t being followed. “What do the Bylaws say?” is absolutely an appeal of the attempt to use parliamentary procedure to disqualify my resignation on a technicality of timing.
No such mechanism exists. There is no process, either in Robert’s Rules or the Bylaws to refuse to accept a resignation. The notice was in writing, and it was read aloud. And, the video captures that Director Clay Jones “receives” the notice (in an envelope), which he then opens and reads. This is not to mention that it was emailed to Director Tunna the day before the meeting, but that fact is perhaps a distraction.
Since a notice may be submitted by a Director “at any time” without any disclaimers or mention of where it fits into parliamentary procedure, and since the Bylaws say it is “effective when the notice is received”, it would appear President Ballweber made the correct ruling THREE TIMES before changing her mind – and this is not recorded in the Meeting Minutes! This INCLUDES a VOTE by the Board, which, without arguing whether “every thing said” should be in the minutes, is an obvious deliberate omission to promote the narrative and outcome that is desired: To then try to apply the earlier Bylaw to me “banning” me from running for or winning a Board seat for 3 years.
It is clear to anyone who has watched the actual video record of this segment of the meeting that, in fact, we have a group of homeowners that was so desperate to disqualify me from being on the Board or participating in elections, that they were willing to run roughshod over parliamentary procedure (when it wasn’t working for them) and the Bylaws to get the outcome they wanted.
Now, it was already obvious that the Petitioners hadn’t thought through their Petition very well. They made a mistake in putting the vote on the Bylaw Amendment 3rd on their agenda. Director Tunna pointed out that if the intention was to apply it to either Director Mowery (myself) or Director Flanary, the sequence would lead to a problem with retroactivity. So, thinking that they fixed that problem, at the beginning of the meeting, they amended the agenda to make it the first item on the list.
Unfortunately, the same folks who didn’t think that part through didn’t consider when a Bylaw change is actually effective. While a change in CCRs requires recording it with the County, which then becomes the effective date (not the date when a vote was taken), a Bylaw change requires an Action by the Board of Directors. That didn’t occur until February 2, 2023.
*EDIT 12/6/23 652pm* EMAIL PROOF RECEIVED: A former Director has furnished an email from an HOA Attorney on 2/2/23 demonstrating the entire Board was made aware that the Amended Bylaw was not effective until it is signed. The Board has not responded to this disclosure, which appears to prove wanton and willful action creating legal liability at odds with fiduciary duties.
Now, the matter is further complicated for Petitioners because they didn’t come prepared for the meeting with actual written language for the Bylaw they wanted. That, in turn, leads to the issue raised by Director Tunna at the meeting.
After the Motion to Amend The Bylaws was made, he made a Subsidary Motion to move the topic to a Committee. This is a legitimate parliamentary procedure with a very good reason – the amendment proposed was an INTENTION, not actual proposal to amend an actual section of the bylaws with actual words that were voted upon. And, to avoid the possibility of the Amendment failing to apply to either Mowery or Flanary (what the Petitioners really wanted), they pushed President Ballweber into a decision to rule that Director Tunna’s motion “diliatory” (means delays without good reason), and therefore out of order.
Therefore, Paragraph 5 should not attempt to assign motive (diliatory) to Director Tunna’s Motion, as there is clearly good faith reason stated (lack of amendment language), backed up by the fact that the actual language wasn’t determined until the Board met using AWAM to determine what the actual amendment said.
But, in a final review of this situation, there’s another inherent problem with the approval of this Bylaw, which does not appear to have been reviewed by an actual HOA Attorney. Our governing documents state that the Board cannot make qualifications for being on the Board. Which, in inverse, means that the Board cannot disqualify a homeowner.
It is possible that the Board, which is limited from making such qualifications, failed in their duties to know and execute the governing documents. The Bylaw is likely to be unenforceable primarily because the power that the Petitioners want is one that is limited to Federal District or Colorado State Courts via the Non-Profit Act 7-128-109.
Of course, that’s an issue for another day. In the interim, the approval of these minutes by the members would then create potential legal liability in several ways. The dispute, however, now appears to be one that can be resolved by Small Claims Court if a homeowner were to seek Declaratory Relief because of the expansion of jurisdiction created by HB22-1137.
We shall see if the POHOA homeowners will recognize the need to amend the Meeting Minutes. But, I wouldn’t recommend anyone hold their breath.
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