PUNT: POHOA Board Allows Intent To Trump Legal Objectivity

*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.

In the ongoing row over whether or not I resigned or was removed at the January 25, 2023 meeting, the issue finally received response after 11 months of inquiry. The Board has decided that in spite of a clear case of applicability of the Bylaws, and a clear case of Amended Bylaws being made effective at a later date, President Ballweber declared that they are just going to ignore all that because they know the intent of homeowners was to ban me.

In other words, they shot, missed, but they’ll call it good anyways.

I had given my clear intent in writing to the Board in mid-October that I was self-nominating:

While I had to leave the meeting for another commitment, John Tunna raised the issue. President Ballweber claimed that she had not been given notice. John pointed out that I had emailed many in the community with a link to an article on this site. Nope, never heard about it.

Oh, really?

So, with literally no one else volunteering for the two open seats initially, the only person who expressed interest has his nomination rejected. Why?

Because in spite of arguments that I had resigned (which she openly acknowledges at the meeting), President Ballweber knew what those members intended to do – ban me. It doesn’t matter that they failed, she knew what they wanted, so she is going to honor their intent in spite of failing to actually do so. In other words, the rule of law is tossed in favor of an angry mob who wants something so badly, they are willing to ignore or cross legal lines to get what they want. As above, so below.

Well, have any attorneys weighed in on the matter?

John Tunna said that while serving in February of 2023, he consulted an attorney to review the issue of when the Amended Bylaw would be effective. And, the legal advice he received was that it would be the date when the Bylaw was signed. In this case, it was a week after the meeting where I resigned, and they went ahead with a removal vote anyways (after President Ballweber, ruled/gave her opinion multiple times that I had, in actual verifiable fact, resigned). The effective date of the Amended Bylaw is 2/2/23.

But, the Board then defended their lack of legal counsel support with . . . Gloria Jones, homeowner, former Director, and spouse of current Director, Clay Jones, declaring that, no, in fact, the Bylaw is effective immediately after the vote is taken. Because she says so.

I see no support for immediate effectiveness in the HOA Bylaws. And, in contrast, when the Bylaws wish to define when something is effective, it is explicit – for instance, when a resignation is tendered, Article IV Section 6(b) is clear that the resignation is effective immediately.

So, who is the Board going to side with? Gloria. We are taking legal advice from Gloria, who is neither an attorney, nor is she citing actual paid legal advice from an attorney.

The question, however, now gets muddier as a result of President Ballweber defending her recorded words from the 1/25/23 meeting. Even though she clearly said “Andy IS resigned” and did some Board-level vote (which she wishes to describe as “polling), she defended her words by saying that it was NOT a ruling, but rather her voicing her personal opinion while acting as Chair of the meeting.

How would we ever know whether she is doing one or the other?

In this case, in spite of plainly written language in the Bylaws about the effective date/time of a resignation, and in spite of a legal review of the effective date of a change to the Bylaws, she’s gonna go with Gloria on this one. Because, well, she interprets the intent of the Petitioners was to fix their botched Petition by moving the action to the first item on the agenda, and their failure to anticipate a resignation having an immediate effect as as a privileged motion at the meeting, and their failure to understand that an Amended Bylaw wouldn’t take effect until they signed it some days later, so to hell with proper process and procedure. Approved. Or, well, it’s her opinion that it’s approved because she’s not gonna put her rubber stamp on it, she’s just gonna not get in the way. Punt.

Brilliant.

What she is apparently unaware of, because they didn’t get an actual legal review from our HOA General Counsel, is that this creates a claim upon which relief may be granted in a court of law. In other words, it creates legal liability.

The question to me is: Is pursuing Declaratory Relief worth it?

Stay tuned. The statute of limitations begins yesterday.