LANDMARK CASE: Recent Appellate Decision Likely Reverses Ballweber’s Election Interference

The POHOA Board is playing with fire and the consequences could be damaging or even catastrophic to the Association. This is no hyperbole given what we are observing happen in another HOA in Colorado Springs after recent Appellate and District Court decisions and orders. The POHOA Board would be prudent to review its actions, but has thus far dug in its heels and is not communicating.

The recent election on 12/5/23 resulted in President Ballweber blocking an open uncontested seat from a self-nomination and subsequent proxy vote by Andrew Mowery (author of this article). Given the recent Appellate Court ruling by Judge Schutz, it appears that Poudre Overlook HOA (POHOA) did not substantially comply with various Colorado statutes or the POHOA Governing Documents. This may have the effect of Board actions since 12/5/23 being legally ineffective, and even rolling back any actions by the Board including changes to policies or documents, entering into contracts, legal actions, or even the regular actions of the Board – both at open meetings and via Action Without A Meeting (AWAM).

In STEVENS v. BRANDYCHASE II, an Appellate Opinion was issues on June 8, 2023. Below is a copy.

The crux of the case involves a Brandychase II HOA (BC-HOA) declaring that Leslie Stevens proxies for an election in November of 2021 were invalid, leading to a disputed election. BC-HOA attempted to redo the election in March of 2022, and the outcome of that election was to elect 5 Directors, but that election was disputed by Ms. Stevens for failing to strictly or even substantially comply with CCIOA, the Non-Profit Act, and/or the BC-HOA governing documents.

Ms. Stevens then circulated a Petition to remove that newly elected Board, which BC-HOA refused to recognize, leading to a meeting in May of 2022 where the Board elected in March of 2022 was removed, and a new Board was elected including Ms. Stevens.

Ms. Stevens filed a case in Small Claims Court for Declaratory Relief, and the case was then escalated to County and then District Court by BC-HOA. The District Court initially ruled against Ms. Stevens, and, in fact, sided with BC-HOA that her removal meeting and election in May of 2022 was a violation of CCIOA. The effect of the District Court was to judge the 3 elections in the following manner:

November 2021 – Invalid
March 2022 – Valid
May 2022 – Invalid (and Stevens is liable for violations of CCIOA)

The Appellate Court, however, in a potentially landmark decision for Colorado HOAs, affirmed some parts of the District Court, but reversed an important part creating a domino effect that is still in progress.

November 2021 – Invalid (affirmed)
March 2022 – Valid (reversed and remanded)
May 2022 – Invalid – (affirmed) / (and Stevens is not liable for violations of CCIOA)

In November of 2023, the District Court issued a Order on Remand that then informs what is going on at POHOA regarding the dispute over whether I was properly barred from the election on 12/5/23 by President Ballweber’s actions, or the Board itself. It remains unclear who determined that the Amended Bylaw attempting to ban me from the Board of Directors for 3 years, because President Ballweber and the Board have been coy and/or unresponsive to direct questions.

As it stands now, President Ballweber verbalized that she was trying to honor the intentions of the Petitioners who wished to ban me, but those members were not the ones who interfered with allowing both a self-nomination and subsequent self-vote for an open and uncontested seat on the Board of Directors. Whether President Ballweber was acting under the color of authority of the Board at the Annual Homeowner’s Meeting is an open question.

Here is the Order on Remand in the Stevens v. BC-HOA case:

The key to the case and its relationship to POHOA is the subject of whether or not CCIOA and the POHOA Governing Documents are to be strictly complied with, or whether they are subjected to evaluation of “substantial compliance”. The Appellate Court declined to determine in the Stevens v. BC-HOA case whether BC-HOA should be held to strict compliance standards because when they reviewed the facts, they found BC-HOA had not even substantially complied.

“We need not decide whether CCIOA or any of its provisions require strict or substantial compliance because we conclude that BC-HOA did not even substantially comply with the applicable statutes. The Colorado Supreme Court has explained that to evaluate substantial compliance, a district court should consider (1) the extent of the noncompliance; (2) the purpose of the provision and whether that purpose was substantially achieved in spite of the lack of compliance; and (3) whether there was a good faith effort to comply.” Griswold v. Ferrigno Warren, 2020 CO 34, ¶ 12 (citing Loonan v. Woodley, 882 P.2d 1380, 1384 (Colo. 1994))“

It is this standard, which dates back to the 1994 case, Loonan v. Woodley, that is the relevant case law and test of whether or not an HOA Board is meeting the lowest criteria: “substantial compliance”. It does not appear that POHOA has done so.

Whether or not certain provisions of Colorado Statutes or the POHOA Governing Documents are to be strictly complied with is a higher standard that requires a review of the underlying cases. To put it simply, in Griswold v. Ferrigno Warren, the latter was attempting to get onto the Colorado Ballot in the 2020 election, but due to COVID restrictions, was unable to get 1500 signatures from each of Colorado’s 7 Congressional Districts. Ferrigno Warren wanted her effort, which was argued as substantial compliance, to be good enough because – well, it was impossible to collect signatures in-person in March through May of 2020.

Ultimately, the Colorado Supreme Court ruled that strict compliance with that statute was necessary because the language was “clear and unequivocal.” If the plain language of a statute or governing document does not create an opportunity for discretion, there is no room for substantial compliance.

For example, on 8/27/19, when POHOA attempted to remove the entire Board of Directors, they failed to comply with CCIOA by applying a strict standard for the percentage of votes requiring a super-majority of 67%. Instead, for some reason that no one has ever explained, the Petitioners and Board (of which I was a member) accepted the language of the Non-Profit Act and the POHOA Bylaws, which appeared to indicate that a simple majority was all that was necessary for removal. As a result of a failure to strictly comply, according to the ruling in Stevens v. BC-HOA, all decisions and actions by the Board from 8/27/19 until all of those members subsequently resigned at once on 5/25/22 may actually be legally ineffective and/or invalid. That includes decisions leading to litigation, all the money spent in 2021 on legal fees (for which there has never been a public explanation), and a variety of changes in our policies, not to mention any enforcement actions during that era. A proverbial “hot mess”.

In Stevens vs. BC-HOA, the District Court is still contemplating how to “unroll” all those actions after an invalid election. We should probably pay attention to how that Court acts in the coming weeks and months.

Meanwhile, in regards to the actions take by POHOA on 1/25/23 at the Special Meeting, it is clear that there are both strict compliance and substantial compliance standards to be considered. We can review them one by one.

MOWERY’S 1/25/23 RESIGNATION

When I tendered my written resignation on 1/25/23 during the Petitioner’s Special Meeting, the POHOA Bylaws are “clear and unequivocal.” The plain language of Article IV Section 6(b) states that a resignation is effective when it is given in writing to the Association.

There is no such language to justify the attempts at the 1/25/23 meeting to try to avoid accepting the resignation or deem it “out of order”. Without any language whatsoever to support those actions, President Ballweber did not even substantially comply with the Bylaws in a case where it appears strict compliance was necessary.

Loonan v. Woodley’s standard for evaluation is: (1) the extent of the noncompliance; (2) the purpose of the provision and whether that purpose was substantially achieved in spite of the lack of compliance; and (3) whether there was a good faith effort to comply.”

In this case, the purpose of the provision (determining the effective timing of a resignation) was not substantially achieved. President Ballweber went out of her way to try to find a way to proceed with a vote to remove me. While she initially agreed that the resignation made the vote moot, and even held a vote by the Board (she likes to call it a “straw poll”), the fact is that once a homeowner gave her the idea that the resignation was “out of order”, she found an escape hatch to get the outcome she personally preferred (bias). That cannot be good faith effort either, in those circumstances.

THE EFFECTIVE DATE OF THE AMENDED BYLAW

As discussed in detail in ELECTION INTERFERENCE: POHOA Board Denies Self-Nomination On Bogus Policy Claims and VINDICATED: Board Willfully Ignored Attorney Advice Enforcing Ban On Mowery, the POHOA Board received written advice from Altitude Law that the Amended Bylaw was only effective upon being signed. This occurred on 2/2/23, a week after the 1/25/23 meeting.

In this case, however, there may not be a standard of evaluating the compliance strictly. Altitude Law’s advice is not a statute or language from a governing document. So, if using the substantial compliance standard, we can look at each of the 3 numerical elements.

1. The extent of the non-compliance was to have considered the timing of the vote in advance of the meeting, and change the agenda to put it as the first item. That means that the Board likely recognized that the Amended Bylaw could not be retroactively applied. They thought moving it from 3rd to 1st position at the 1/25/23 meeting cured the problem.
2. The extent of the non-compliance, however, continues after the meeting, when the Board learns that signing makes it effective. It did not seek or find any paid legal opinions that contradicted Altitude Law (Alina Gilbert), nor have they ever produced a contradicting opinion from the HOA General Counsel, Moeller Graf.
3. The Board then avoids all follow-up questions on the issue both at in-person meetings as well as numerous emails.
4. The extent of the non-compliance is then compounded by President Ballweber refusing to acknowledge the self-nomination by me at the 12/5/23 meeting, as well as in follow up emails after that meeting. It continues to this day
5. The purpose of having Bylaws signed to be effective is to delineate with an actual action of the Board, not a vote by members (an intention to change the bylaws). By retroactively applying the Amended Bylaw, the purpose is not achieved.
6. There is no good faith effort to comply with the fact that the Amended Bylaw is only effective upon signing it. The Board simply wants to ignore that fact, which is not good faith at all. We can’t even get the Board to say out loud (or in writing) that this is when the effective date is.

Given those circumstances, even if strict compliance is not the standard, the POHOA Board, like the BC-HOA Board in the referenced cases, doesn’t even meet the standards of “substantial compliance”.

NOMINATIONS AND VOTES

There is literally no language regarding HOA nominations for the Board of Directors in the Non-Profit Act, CCIOA, or the POHOA governing documents. Therefore, it is not possible to apply any strict compliance standard. However, once again, the POHOA Board is obligated to follow its policies per CCIOA. And, one of the required policies is the one that requires following the policy to change policies, as confusing as that may sound.

Because there is silence in the documents on nominations, we have to search elsewhere for guidance on which standards of compliance applies. Fortunately, not only does Stevens vs. BC-HOA furnish such references and citations, but the underlying cited cases of Griswold v. Ferrigno Warren, 2020 CO 34, ¶ 12 (citing Loonan v. Woodley, 882 P.2d 1380, 1384 (Colo. 1994)) do as well.

It appears that President Ballweber seeks to strictly apply a non-existent requirement for a Floor Nomination when no such language exists. The referenced cases actually provided the opposite approach: “See § 1-1- 103(1), C.R.S. 2022 (The election code “shall be liberally construed so that all eligible electors may be permitted to vote” and to prevent ineligible voters from voting “in order to prevent fraud and corruption in elections.”

By approaching the matter with me strictly vs. liberally, she prevented my self-nomination and subsequent vote. And, we learn from Robert’s Rules of Order that when the Bylaws fail to require or specify nominations, they are actually unnecessary to count a vote cast in the election. Therefore, when the seat is uncontested, the action to block the self-nomination, and therefore interfere with the subsequent collection of my proxy vote is . . . interfering with my fundamental right to participate in the election!

In Judge Schutz’s Opinion on Stevens v. BC-HOA:
“This Court rejects BC-HOA’s argument that its failure to provide fair and reasonable notice is immaterial as the affected percentage of the eligible voting body was the minority percentage. Such an argument runs afoul of Coloradans’ fundamental right to vote. In re Hickenlooper, 2013 CO 62, ¶ 13, 312 P.3d 153, 157.”

Given that it appears my fundamental right to vote for myself was denied by creating out of thin air a policy (which does not strictly or even substantially follow our Policy on Amending Policies), it cannot possibly be substantial compliance with the statute dictating “liberally construed” election code to ensure the right to vote is not denied. And, it certainly runs afoul of a suite of other legal citations found within these cases.

The LEGAL STANDARD in the Order on Remand in Stevens v. BC-HOA, states as follows:

“Any U.S. Citizen, over the age of eighteen (18), who has resided in the state of Colorado for at least twenty-two (22) days, has the right to vote in elections. CO ST Art. 7, § 1. 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. 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. 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. Further, members must be provided fair and reasonable notice of annual, regular and special meetings, including special elections, no fewer than ten days before the meeting date. C.R.S. § 7-127-104(3)(a). 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). 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).”

Given that recent legal standard in Stevens v. BC-HOA, we can evaluate President Ballweber’s actions and determine that the true will of the voting public was not reflected. I self-nominated in advance of the meeting, the POHOA Board did not address the validity of the nomination in advance of the meeting, issue any requirements arising from the documents, or prescribe a cure or remedy. They simply wished for it to be an invalid nomination because it was not made from the floor – a made-up invalid policy.

President Ballweber did not comply then, with statutory requirements to change the Bylaws or Policies in advance of 12/5/23. She simply acted as though a made-up “board policy” had legally binding effect on the election. And, as a result, interfered with my right to cast my vote by refusing to have a vote at all! My proxy vote was written, duly handed to a homeowner who raised the self-nomination, and were there an opportunity to give the secret ballot to the administrators of the election, would have done so.

Therefore, without substantial compliance, the election itself was invalid. This includes the election of Jeff Ballweber, as he was not voted in by secret ballot – when I was contesting the same seat. While it can be presumed that he would have garnered more votes, without an actual election that counts ballots, it is not valid.

And, of course, the effective canceling of an election for the open seat by refusing to accept my self-nomination on the basis of enforcing the ban stemming from the Amended Bylaw is not substantially compliant either. Even if there is any reason strict compliance may be necessary, just as in Stevens v. BC-HOA, an adjudicator need not reach that conclusion because substantial compliance did not occur (the lower standard).

WHY DOES THIS MATTER?

Addressing the proverbial Elephant in the Room, it is rather obvious that I could be removed again, if I was actually elected. And, while that may be true and awaiting in the wings, that alone does not justify running an invalid election. The removal process would be necessary to follow, whether inconvenient or not – and it is likely a matter of strict compliance with statutes.

But, the reason for joining a hostile Board as a minority seems pointless to many. Some would say “you’re gonna lose all the votes anyways, so why try to be on the Board?”

The answer is because of AWAMs. This POHOA Board is fond of doing business outside of meetings. in fact, this is a serial problem with almost all configurations of the POHOA Board since at least 2019, and arguably since the inception of POHOA. Many Directors simply want to shortcut and make decisions informally – by email, by having a verbal conversation in the street (literally), or in a variety of ways outside of an open meeting complying with the Open Meetings Act (which must be complied with both strictly and substantially, depending upon the statute’s language).

In 2021-22, the POHOA Board led by Gloria Jones acted on at least 18 AWAMs without following Colorado Statutes regarding the documentation. There is clear and unequivocal language in CCIOA that requires such actions outside of meetings be accompanied by signed documentation. It must be strictly complied with. Yet, they did not. So, on 5/12/22, that Board attempted to clean up that mess with a single vote at an open meeting.

The problem with that approach is that it did not afford the homeowners the opportunity to speak before each vote and perhaps influence the vote (or any potential amendments). As a result, business was done non-transparently, and without substantial or strict compliance with Colorado Statutes or the governing documents.

We know that in 2023, Director John Tunna was able to get the rest of the POHOA Board to finally post AWAM documentation on the Frontsteps website without requiring a document request (as Gloria Jones did in 2022, revealing the failure to comply). However, when John resigned in August of 2023, it appears that the remaining Board simply went back to taking actions outside of meetings without following the AWAM procedure – until December 27, 2023, when they voted to testify in front of the HOA Task Force with specific language.

If I had been properly seated, I would have declined to have that vote, and as a result, the action to defame me at the HOA Task Force would have been required to be brought up at an open meeting.

I’ve checked with numerous HOA Law experts, and I have not found any that have ever seen an HOA explicitly vote to become a lobbying organization – particularly when CAI and CLAC already do that on behalf of all their member HOAs. POHOA could simply join CAI, and let them do the lobbying.

POHOA may be risking the tax-exempt status of the Association if they are found to be lobbying as a primary activity of the Association. My participation on the Board could have helped us avoid even the appearance of impropriety until we got good legal advice on whether to proceed.

Instead, by interfering with the election, the POHOA Board has given themselves the green light to continue to doing business secretly, and only disclosing such decisions when they want to.

CONCLUSION

The POHOA Board needs to review and reconsider their actions given what is revealed in these citations. I have been trying to get this addressed for nearly a year, and yet, we see President Ballweber and the Board compounding their errors by refusing to simply acknowledge that the Amended Bylaw could not possibly be enforced on me as a matter of law. A failure to strictly or substantially comply with a variety of statutues and governing documents are additional reasons for participation by someone who has both training and experience. Avoiding a legal review only undermines the perception of acting in good faith.

But, let’s be clear, the POHOA Board doesn’t want ANY persons who disagree with them to be on the Board because it inhibits the ability to move controversial actions into AWAM situations. If someone was on the Board who opposed such actions, they would be forced to put it on the agenda and bring it up at an open meeting. They don’t like that.

Furthermore, because of a Duty to Share All Relevant Information, they would need to disclose both the new Gmail account and Quickbooks to a duly elected Director. And, that would then undermine the campaign to describe document requests as “fishing expeditions”. Discovery of what they are really doing (and trying to keep secret) would be exposed – and they just can’t have that.

So, they are willing to even substantially comply and create liability for the Association and themselves by creating this mess. And, that is putting self-interest ahead of fiduciary duty.