RUTHLESS: Petitioners Bungle Motions And Reject Mowery Resignation at Special Meeting

EDITED: January 27, 2023

At the January 25, 2023 Special Meeting of Poudre Overlook HOA, two motions were made to remove Directors Mowery and Flanary per CRS 7-128-108. The third purpose in the petition and notice was to “Vote to approve an amendment to the Association Bylaws to state that Directors who have been removed from the Board by a vote of the Members may not be elected or serve on the Board for three calendar years following the date of removal.”

It is unclear if the Bylaws were actually changed, and if they were, whether it becomes instantly invalid because the amended section was already in conflict with CCIOA. The motion was vague and confusing, and attempts by Director Tunna to table the decision by moving it to a Committee were improperly denied a vote by Director Ballweber because she failed to recognize it was a privileged motion. Director Tunna even came prepared with a printed Robert’s Rules citation to show Director Ballweber, but she ruled his motion as improper and therefore not worthy of a vote.

According to Robert’s Rules of Order, a motion to table is a privileged motion, which means that it is given priority over other motions and is usually considered immediately. It is in order to vote on a motion to table a question at any time before a vote is taken on the main question.

It’s sad, too, because Director Ballweber had been learning and improving over time, but may have made an error that causes the Association to take additional actions that will frustrate everyone – on all sides of these issues. This may just be another lesson with a need to remedy in the near future.

It is unclear if there was any actual Bylaw language actually offered, or whether the members voted to come up with that language at a later date. A lack of forethought by Petitioners may ultimately undermine their intent – to target Mr. Mowery by changing the bylaws, which is legally dubious to begin with.

But, a second error may have been made in attempting to remove Director Mowery. According to Robert’s Rules of Order Newly Revised (RONR) 12th edition, Section 46, a resignation offered before the vote on a motion to remove is considered to be a privileged motion, which takes precedence over the motion to remove.

In this situation, the chair of the meeting, Director Ballweber, did not follow the proper procedure outlined in RONR. The vote to accept the resignation should have been put to the homeowners, who are the assembly or members of the non-profit corporation, as they are the ones who have the authority to accept or reject the resignation. However, the chair instead asked the Board of Directors members, with 3 said yes, 1 abstained, and the Chair then said it was moot.

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EDIT FOR NEW INFORMATION: Turns out Robert’s Rules of Order may not apply regarding whether the Board or Members accepted the resignation. Sitting right there next to Section 7 of Article VI of the Bylaws is Section 6, which states the following:

END JANUARY 27 EDIT
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So, while it is clear that Petitioners wished to reject Mr. Mowery’s resignation, and even attempted to assign motives to his actions in spite of his words, and then ban him for 3 years, it is truly unclear whether they accomplished their goal they absolutely did not because they did not follow Article VI Section 6 of the Bylaws – although they did celebrate as though they had. What is also clear is that the attempt to do the same to Director Flanary failed miserably because Petitioners failed to overcome Director Flanary’s proxies – leading to gasps from Petitioners that were quite predictable.

Mr. Flanary was elected with 24 votes in December, so there would have to be 72 members at the meeting to overcome that number in a two-thirds majority. With only 59 members attending per the quorum count, it was mathematically impossible. It was an embarrassing defeat, as Director Flanary now moves forward perhaps empowered.

It’s also important to note that changing the bylaws to target a specific person without fair process may be considered as not fair or just. Even if the bylaws were amended in compliance with the bylaws and state laws, it’s important to consider whether the amendment should apply to the specific individual, Mr. Mowery, who is clearly being targeted. It’s possible that the amendment could be considered unjust or unfair to Mr. Mowery and any action taken based on the amendment could be challenged in court.

Not that Mr. Mowery showed any indication of an intent to remain on the Board with these specific Directors or go to court. His resignation letter is clear that returning to serve with those who do not consistently deliberate or vote on matters is ultimately a waste of his time. He also made clear to Mr. Campbell, who lamented legal costs shouldered by homeowners due to disputes, that Colorado’s HOA system is designed by attorneys to put as many disputes as possible into court for their gain.

What is the remedy?
EDIT JAN 27:

One potential remedy would be to hold a new meeting specifically to vote on the acceptance of the resignation. This would need to be done in accordance with the bylaws and laws governing the non-profit corporation. The new meeting should be properly noticed and should be attended by the assembly/members of the non-profit corporation, who have the authority to accept or reject the resignation.

Another remedy could be an appeal of the vote taken at the previous meeting. The bylaws of the non-profit corporation should be consulted to determine the process for appealing a vote, and it appears the POHOA Bylaws are silent on the matter. It means there is nothing demanding or preventing this from being done. Deliberation and voting remedy such silence, but time and again, Director Ballweber, with support from Director Jones, ignore the need for open and honest communication within the Board.

And, once again, it is important to consult with legal counsel to determine the specific legal requirements for removing a director, and for guidance on how to proceed in this situation. Avoiding such guidance creates potential not only for legal expense or liability, but also for further divisiveness over decisions made.

What will actually happen: Probably more of the same. Director Ballweber will likely declare this “already decided”, and resist all attempts to fix the problem. As both President and Secretary, she may just try to change the Bylaws language in an interpretation of what was voted upon. There was never anything put in print to suggest where it would go in the documents (Article VI Section 7 is a logical target).

Given the discovery that Article VI Section 6 was not followed should be an acknowledgement of the error by the Board, which should then learn and improve from the mistake. It would be nice if they straightened things out with the members who walked away with the impression that they banned Mr. Mowery for 3 years, but as elaborated upon in “POINT WELL TAKEN“, we do not have a history of Directors who openly admit they’ve ever made an error. This is kind of a big one, so maybe we will learn and improve, or maybe we will dig in heels and fight about it. Hard to be optimistic given the emotions at the meeting.
END JAN 27 EDIT
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Which raises a significant legal question: It appears that Article VI Section 7 is not compliant with CCIOA. Because the Bylaws ignore the CCIOA requirement that a director is removed by a two-thirds majority vote of those present, and instead cites the Non-Profit Act language whereby removal is done by the same ratio as the bylaws specify for election of a director, amending that bylaw without first fixing the ratio may make also make the new the amendment invalid or ineffective because the two-thirds criteria was used (not actually following the bylaw). A proper amendment may have to be a new Section of Article VI (Section 7.5 or something), or perhaps a need to rewrite Section 7 entirely. Which is why it would have been a very good idea to consult an attorney first!

Stay tuned for more developments, as this process has potential to continue to put other important HOA business on hold and dominate meetings going forward for a bit.