I have submitted the following to the Board for inclusion as a motion at next Tuesday’s meeting:
I, Andy Mowery, make a motion to add an addendum to the minutes from the Nov 13, 2018 Annual Meeting Minutes to include the following:
There was a question posed to the Board by a homeowner regarding “Can homeowners override the Board”? The response given by the secretary of the board was that the board has ultimate control and power as the HOA Community is formulated on the basis of a republic, and that the democratic powers of the homeowners are limited to the sole action of voting for directors at the annual meetings.
This information needs to be corrected, based on four major points:
1. Statutes clearly give the Owners the power to remove Board members via two methods. They can remove Board members at an Owners meeting, or go to a Judge to have the members removed, and if necessary, barred from future participation.
2. The governing documents give Owners explicit rights to overrule the Board.
3. The governing documents give Owners specific rights to determine matters, excluding the Board as the decision maker (choosing the number of Directors, for instance).
4. In addition to voting rights to overrule the board, or to vote directly on matters, Owners also have specific democratic powers beyond voting. They are allowed to participate and influence the agenda, discussions, and voting of board members.
At the Annual Meeting on November 13, 2018, Heather Phillips stood up and asked the Board a question about whether Owners could ever overrule the Board. Irve Denenberg and Walker Flanary gave responses. Neither the question nor responses were recorded at the meeting, and it is my belief and contention that the response articulated misinformation to the Owners which should be noted as a correcting addendum to the minutes.
In response to Heather’s question, Irve responded “I don’t think so”. Walker then stood up and gave a speech about his belief that we do not have a direct democracy in our HOA, but rather a “Republic” that limits the powers and participation of owners to voting for Directors at Annual Meetings. He also went further to express that once elected, Directors of the Board had full and complete authority to make all decisions for the Association without interference or participation by the Owners, and that Owners had no recourse regarding any specific decision – other than to vote out those persons at the next available election at the end of their 3-year terms.
While, of course, both Owners and Board members are entitled to their opinions and are free to express them at our meetings, this response was ambiguous regarding whether it was Walker’s personal opinion, or whether it was the opinion of the Board (speaking with one voice). It also implied, particularly because Walker emphasizes his former career as a criminal defense attorney, that this opinion was legally sound and/or reviewed by an attorney.
The meeting minutes need to be amended to address this misinformation, and address the falsehoods directly and specifically.
First of all, in Colorado, HOAs are governed by the Non-Profit Act and CCIOA, which are statutes that govern all Common Interest Communities (CICs) formed since 1992. Those statutes address the topics of transparency and participation, as well as how board of directors are chosen and/or removed. It is abundantly clear that Owners have the power to remove the Board or individual Board Members no only at Annual Meeting Elections, but through the powers granted in CRS 7-128-108 and 7-128-109. The statutes give such powers if the owners assemble a quorum of no more than 20% (our Bylaws state 10%) to initiate proceedings under either statute.
While Board members can be removed with a simple majority vote of those attending a Special Meeting, the “109” process allows the owners to petition a State Court for not only removal, but to bar persons who are a particular nuisance, from further participation. See paragraph 2 of CRS 7-128-109.
Specifically, those who are found to have acted fraudulently or dishonestly, as well those who act with gross abuse of power can not only be removed, but can be barred from future participation in HOA governance.
Second, Walker’s speech (and Irve’s comment) misinformed the Owners at the meeting about the specific powers enjoyed by Owners per our governing documents. And, given the concurrent debate with one owner over their right to a hearing on a disputed ACC and Board Decision in which they were demanding a hearing as prescribed by our governing documents, this may have been willful and wanton self-serving behavior lacking consideration of the needs of the community. Our CCR Article IX Section 7 is explicit on the process by which an Owner can appeal an ACC decision to the Board, and then appeal a Board decision to the Owners. Clearly, and without debate, our governing documents give Owners the right to overrule the Board on at least some decisions.
This was affirmed by the HOA attorney, Pete Dauster, in the days following the meeting. This is not an open question subject to opinion. It is established fact that in Poudre Overlook HOA, the Owners do, in fact, have the right to overrule the board. The open question is on what specific topics, and whether the board can limit such powers to specific topics. There remains a Policy for Enforcement that ignores that process, and offers, instead, mediation and hearings at the discretion of an owner. Since mediation is simply dispute resolution hoping to reach mutual agreement, and a the hearing process does not specifically allow an appeal to owners, it clearly remains an open topic. The question is whether the owners themselves, or the board should make this policy decision.
Third, Walker’s speech made abundantly clear his opinion that Owners never have any direct say in association matters other than electing Directors. This too is demonstrably false.
For example: Per Colorado Statutes, the power to determine how many board members can be a decision made by the board or the owners, if the Bylaws state the number is a range. Our Bylaws state the number of Directors can be anywhere from 1-9 members.
However, In the Bylaws Article VI Section 3, we have lifted the language from the statutes but omitted the option for the Board to be a party that chooses the number of board members. That power is given solely to the Owners. The Board itself must accept the decision of the owners.
Clearly, our democracy is not a pure “Republic”, as expressed by Walker at the 2018 Annual Meeting, whereby the Owners are limited to the sole democratic action of voting for Directors who have absolute control of agenda and voting on specific matters for the remainder of the year.
Clearly, both Colorado Statutes and our governing documents envision direct participation by Owners on at least some specific matters. It is not an absolute power enjoyed solely by the Board. This could be described as the difference between serving the community and ruling over the community.
Fourth, however, is a more mundane power of Owners to participate directly in their democracy. Prior to November of 2018, the Board was not publishing the time, date, and location of it’s Board or Committee Meetings, or making any effort to give notice to owners in a comprehensive way. Colorado Statutes require participation, but requirements on notice are too vague (and ultimately led to debate by this HOAs Board). What is clear, however, is that Owners have a right to participate at Board meetings, including the right to speak about each and every matter brought to a vote. While this is not direct participation in democracy with a vote, it is influence, which is absolutely a component of democracy.
It remains to be proven whether the responses from Irve and Walker at the meeting, which were omitted from the meeting minutes by Walker, who coincidentally was the Secretary responsible for composition of the meeting minutes, were wanton and willful. Additional documentation from outside the meeting would need to be considered. But, because many of the topics were recorded contemporaneously in an email sent to the Board on 11/14/18 to address this topic, I believe that a copy of that email should be added with this addendum into the official records of the association for future consideration.
While Colorado statutes allow ignorance to be an excuse for non-compliance with the statutes, such individual and board liability is waived if evidence exists of “wanton and willful” actions. I believe that as a secondary purpose, this addendum and supporting documentation are necessary to preserve the record for future adjudication of CRS 7-128-109 in light of an ongoing and current pattern of dishonesty in conveying the broad and specific powers enjoyed by the Board, Owners, or both. We cannot allow such persons to control the agenda, discussion, or recording of our collective decision-making for personal reasons that disregard the greater needs of the community.
As part of this motion, I would like to ensure that this addendum is included in the same single-file document that can be reviewed by owners on the HOA website as the official legal record of the minutes of the 2018 Annual Homeowners Meeting.