THE BIG QUESTION: Should Walker Flanary Be Barred For 3 Years?

On January 25, 2023, the POHOA Homeowners will gather, once again, at the Fort Collins Senior Center to consider a Petition that not only calls for the removal of Director Flanary and Director Mowery, but also makes a motion to bar a Director who is removed from being elected to the Board again for 3 years. But, in typical POHOA confusion and chaos, it appears that the Petitioners either didn’t think through the importance of sequence in the Agenda, nor did they prepare an actual Motion for Homeowners to consider. Rather, the Petition, which merely states Purposes of the Special Meeting in a numerical order, has been taken as a strict requirement for Director Ballweber to then issue a Notice where the Petition sequence is now the Agenda sequence.

WHY IS THIS A PROBLEM?

Well, according to the research and analysis done by Director Tunna and shared with the Board in advance of the meeting, the Petition cites the POHOA Bylaws as the authority upon which they are acting to remove Directors. Since they are the first items on the Agenda, the removals would be done under the existing Bylaws. By sequencing the Amendment to the Bylaws third, it would not retroactively have the intended effect the Petitioners may seek – an immediate disbarment of Directors Flanary and Mowery for 3 years going forward. In order to do that, the Motion to Amend the Bylaws would have to be the first thing on the Agenda.

The question of how this may be remedied delves a bit deeper into who is the Chair of the Special Meeting, who actually controls the Agenda, and who votes to Amend the Agenda. Adding to the complexity is the issue of consistency with practices at prior Director Removal Meetings, and the attempt to take the power of disbarment from the Courts without any standards or criteria that only a Judge can use per CRS 7-128-109. It raises a huge question as to whether such automatic disbarment for simply being removed from the Board without cause should apply retroactively to the 6 Directors who have ever been removed, and whether the disbarment term begins at the time of that past removal – or goes forward from the Amendment to the Bylaws.

Putting aside the fact that I am the target of this action myself, a focus on Director Flanary’s history with POHOA, particularly as reported and recorded on this blog, might lead one to believe that I favor his removal and disbarment. One observer at the 10/20/22 Special Meeting to remove me from the Board actually asked out loud if Mr. Flanary and I should simply have a “cage match”, indicating we are apparent perpetual rivals in this HOA’s governance. But, I think those with such expectations ignore the fact that my advocacy for fair and accurate application of the law and governing documents supersedes any political rivalry.

WHAT SHOULD BE DONE, THEN?

If 67% of Homeowners vote to remove Directors Flanary and Mowery on January 25, they don’t need a reason per The Non-Profit Act (CRS 7-128-108), CCIOA (laws that govern Colorado HOAs), or the existing Bylaws. However, if the Bylaws are to be Amended, careful thought should be put into having criteria and standards because no-cause disbarment by the Courts per CRS 7-128-109 isn’t a thing. Again, Director Tunna’s research and analysis points to a need to table this vote, form a committee to research and present findings, and then a follow-up meeting to vote upon a more developed Amendment to the Bylaws that has also been reviewed by an attorney.

There’s a reason you have to go to Court to bar someone from service as a Director in a Non-Profit Corporation, and pulling that power into the hands of Homeowners shouldn’t be done emotionally or flippantly. And, unless Petitioners, who are not communicating what their actual Motion is to the Board, let alone Homeowners, are hiding a more developed Amendment until the meeting, it appears we are trying to do this without Homeowners being fully informed prior to making their vote. And, in fact, those who give Proxies (for which Director Flanary is known to carry more than a dozen) literally can’t have their wishes represented because Director Ballweber has banned Zoom participation, and withholding the actual Motion means only the Proxy-Holder gets to hear/see it minutes before a vote is taken on it.

THERE’S GOT TO BE A BETTER WAY

In fact, I supported Director Flanary joining the Board with our vote in December in spite of being the only Homeowner in the neighborhood who has filed a Formal Complaint (two, actually) with the POHOA Board about Director Flanary’s actions as a Director or Homeowner.

I am the only one who:

• Filed a Formal Complaint with POHOA regarding Director Flanary’s non-compliance in May of 2019
• Got legal advice from Robinson & Henry indicating Director Flanary should be barred per 7-128-109
• Presented legal advice to Homeowners affected by Director Flanary’s non-compliance asking them to join a Quorum to Remove and Bar Director Flanary using 7-128-109
• Provided the Facts used by Petitioners to Remove (but not Bar) Director Flanary in August of 2019
• Demanded intervention by the POHOA Board, as a matter of FHA Law in December of 2019
• Demanded Mr. Flanary be barred from serving as a Director as a remedy in January of 2020 as part of a Compromise Proposal (rejected by the POHOA Board)
• Demanded a proper Hearing and Mediation on the matter of Mr. Flanary being Barred from service as a Director (rejected by the POHOA Board)
• Actually attempted to litigate Mr. Flanary being barred using 7-128-109, but was denied because the Court bought the Defendant’s Statute of Limitations claims (3 days late), and wouldn’t allow relief sought without a Quorum of 10% participating in the litigation.

So, in a sense, I’ve literally done all the things possible and allowable to take the action sought by the new Petitioners for this action in 2023 – nearly 4 years later. Well, except for one thing that Robinson & Henry touched upon when I got legal advice on 6/6/19 – Amending the Bylaws. At the time I got legal advice, it was identified as a requirement (following the Bylaws), and the subject of amending them to bar Director Flanary was deemed a choice that was inferior to doing it the “right way”, and having a Judge do the removal and barring from service – because manipulation of the Bylaws could have unexpected consequences down the road, and the perception of it being political vs. justice would be addressed by the Court’s impartiality, Rules of Evidence, and process and procedure to ensure that the action would not deny Director Flanary the opportunity to fully defend himself.

Now we appear to have Petitioners that want to take this power from the Courts, and instead push for automatic barring without ANY evidence (citing the ability to remove without having to even state a cause), and then only letting Mr. Flanary have 2 minutes to respond verbally. Or, maybe 8 minutes, which is how long he spoke as the voice of the Petitioners on 10/20/22. No matter, there is a stark contrast between a Judge barring someone from being a Director, and some automatic application of a new Bylaw that has zero criteria or standards. The potential for abuse as a political tool is obvious, predictable, and even likely.

I actually support changing the Bylaws. We clearly need a way to ensure that we don’t have Board Members who refuse to follow the rules and laws that apply to them, and waiting to vote them out when their term expires, or going through multiple cycles of Special Meetings to remove Directors is divisive, time-consuming, and ineffective. CCIOA requires that the HOA have a functional Alternative Dispute Resolution Policy, and POHOA has had Boards that simply not allow the topic of how a Homeowner is supposed to properly raise the issue of Non-Compliance without retaliation, and without the Board sidestepping its CCIOA responsibility to perform impartial fact-finding. In other words, self-regulation doesn’t work. I know, shocker.

So, changing the Bylaws alone, which I support, isn’t going to be effective unless we also simultaneously address having a Policy that a Board of Directors must follow when someone thinks they aren’t complying with laws or rules. That Policy should then allow for oversight (without retaliation) of the Board, independent impartial fact-finding by members or a committee commissioned to perform the duty, and a process by which the Homeowners can vote about barring someone from being a Director when facts support the written criteria in an Amended Bylaw.

WHAT WOULD THAT KIND OF AMENDMENT LOOK LIKE?

After the 1/10/23 POHOA Board Meeting, I attempted to find out what Petitioners were seeking in a number of ways. I tried approaching two petitioners after the meeting, and it quickly devolved into a heated argument after proposing a meeting to resolve their grievances. Response “absolutely not”.

I asked Director Ballweber what the actual Amendment was, and she claimed that we had to strictly follow the Petition, as though it gave us zero discretion in advance of the meeting. While there’s some truth to the meeting’s topic’s being limited, the Petition does not actually state an Amendment to the Bylaws, but merely a purpose, which is an Amendment which has the effect of barring a Removed Director from serving again for 3 years. If we are to change the Bylaws, it would be necessary to talk about the specific language changed or added, and Director Ballweber has avoided that deliberation entirely.

I’ve prepared an example using AI technology to analyze existing bylaws found elsewhere:

This is just one example, not a final proposal. A starting point. And, I believe that Director Tunna is right, if we are going to amend the Bylaws, we should do so not just in a thoughtful way, but in an inclusive way. The Petitioners should have special powers, nor should the Board, to control what is considered and presented for a final vote. A Committee is the right way to go about this, and could be easily commissioned by the Board of Directors with a Resolution.

And, to make such a large change to our documents should neither wait for a huge gargantuan “document revision” process, which has already failed once. We can do this with a majority vote at a meeting.

This raises the other point: A meeting like this should be done with inclusion of those who are either unable to attend in-person meetings, or who are uncomfortable with in-person meetings. Denial of participation without accommodating those who are disabled is itself crossing into violation of rights per FHA and CADA.

Director Ballweber had claimed that Zoom Access is not allowed at meetings where there is a vote based upon the claim that safe and effective technology does not exist. This is false, and literally thousands of HOAs are running ALL of their meetings by Zoom – without running afoul of any governing documents or laws. A meeting scheduled that is not inclusive of those who prefer to participate remotely allows for an informed vote vs. the alternative – an accumulation of proxies to give some homeowners outsized power in making this choice. Just another reason we need Proxy Reform.

SO SHOULD DIRECTOR FLANARY BE BARRED FOR 3 YEARS?

As the person who not just advocated for Director Flanary to be barred in 2019-20, and as the person who has literally documented years of concerns with his behavior, the surprising (to some) answer to this question from his rival is: NO

There’s several reasons:

A. STATUTE OF LIMITATIONS: When I attempted to have Mr. Flanary removed by the Larimer County District Court under CRS 7-128-109, I asked for the totality of the circumstances to be considered (an FHA standard), to waive quorum requirements, and to provide injunctive relief (barring him from being a director) because his actions met the standards in Section 109. Filing on June 1, 2020 was deemed 3 days too late. It seems ridiculous that the Petitioners could go back even more years now to use evidence more than a year prior to justify barring Director Flanary if a Court would not do the same.

B. CONSISTENCY: The POHOA Board in January of 2020 had an opportunity to seek voluntary mutual agreement that Mr. Flanary would not participate on the Board for a number of years due to my Formal Complaint as part of our Policy for Enforcement. The Board responded with a letter stating that Mr. Flanary’s removal from the Board on 8/27/19 fully resolved all matters – including his disruptive behavior at meetings AFTER his removal. It is ironic that 3 of those Board members at that time are now 1/3 of the Petitioners for the current action – which amounts to an acknowledgement that either they’ve regretted their prior decision, or wish that we now take actions that they themselves refused to take when it was within the Statute of Limitations.

C. EXISTING REMEDIES: The same Quorum of 10% of Homeowners who signed the Petition could have, at their own expense, hired attorneys, and filed for relief with the Larimer County District Court as I did in June of 2020. If they felt his disbarment was in the best interest of the community and association, they could have presented their evidence to a Judge, who would review and find their facts impartially before granting the relief they seek.

I did this legwork on June 6, 2019 with Robinson & Henry. At that time, those attorneys advised that Mr. Flanary could be barred per CRS 7-128-109 given the facts they reviewed. I emailed my fellow Director, Director Johnson, and copied the Bruckers and Campbells the same day. Included was the retainer amount ($2250) and estimate to get the relief sought if contested by Mr. Flanary ($20-30k). Because NO ONE WANT TO SHARE THE COST, Director Johnson proposed that he and I remain on the Board, and recommended to the Bruckers and Campbells that the entire board be removed on 8/27/19.

The next day, the Petition to remove the Entire Board was first signed, and was eventually delivered to the Board on 6/17/19. It is ironic that the Bruckers and Campbells, who knew full well that barring Mr. Flanary was recommended by Robinson & Henry, but simply didn’t want to PAY for it, are now two of the signing households to change the Bylaws – without any criteria.

If they feel strongly about removing Directors Flanary AND Mowery, they could simply go to a Court to have a remedy that would be enforced under threat of contempt of court. Instead, they want to just make removal a matter of automatic barring from service – without even a cause stated, let alone supported by facts that are verified impartially. As a matter of general justice, this is an affront to the cause.

D. GROUND RULES: At the 10/20/22 Special Meeting, Director Ballweber, under color of Board action (but without deliberation or vote), declared a set of Ground Rules that she announced at the beginning of the meeting. Included was a boundary for topics discussed – the date of election, which was 5/25/22. No topics or facts prior to that date could be raised.

Super-ironically, it was Mr. Flanary who stood up and gave an 8-minute presentation that made factual claims without providing any factual evidence, most of which was a claim that my litigation (which aimed to bar his participation under CRS 7-128-109) was frivolous. Included in this irony is the fact that Petitioners, who are former Directors Jen Hutchinson and Linda Brucker and comprised the “Litigation Committee”, argued as Defendants to the litigation and CCRD case, through attorneys, that I should not be allowed to get the relief I sought because . . . Mr. Flanary contested the matter. Now, they want to bar him from being a Director by removing him just 4 days after being elected!

Beyond the hypocrisy, if the same Ground Rules are to apply consistently from 10/20/22, Petitioners would be limited to presenting evidence after 12/14/22. There is literally nothing to examine!

So, in order to find some reason to bar Mr. Flanary, the Ground Rules would have to be customized to fit the situation, which makes it super-obvious that the rules are merely a manipulation of the process to achieve a desired outcome – not objective standards for the purpose of justice in the process.

E. REDEMPTION/TIME-SERVED: Even if we were going to reach back to Mr. Flanary’s actions prior to 12/14/22 (ground rules), or beyond the Statute of Limitations (1 year prior) into the era when Mr. Flanary did, in fact, serve and cross boundaries that I have fully documented, application of the penalty or punishment (barring service for 3 years), would likely begin upon his last removal – 8/27/19. Since the POHOA Board has already determined his transgressions were resolved by being removed (1/23/20 letter), and since more than 3 years have elapsed since that penalty/punishment was applied, it is rather inappropriate to have his actions revisited and any punishment timeline begin now.

Even more so, at the election on 12/14/22, a homeowner asked Mr. Flanary whether or not he’s learned anything since all of this has occurred. Mr. Flanary said that he had. And, for reasons that are not found in any governing documents or laws, it would appear that Mr. Flanary must be given an opportunity to show he’s redeemed himself from past transgressions, and can operate within the boundaries of the governing documents and laws going forward. Whether or not I or anyone else has doubts, until there is a CURRENT action that meets standards and criteria, even his removal, is hard to understand when Petitioners seem to be actively avoiding providing what their actual grievances are with facts to support them.

Having homeowners vote emotionally on whether they like Mr. Flanary’s personality is offensive to me, and actually part of the problem at POHOA. While I disagree with Mr. Flanary strongly on certain things, we actually agree on quite a bit – even a majority of things if we made a numerical list. I absolutely take issue with his manner at meetings, but the right way to address this is for the Chair to enforce Robert’s Rules impartially and dispassionately. It’s that simple.

It would be so easy to simply jump on this emotional bandwagon, but my purpose is not to defeat Mr. Flanary as a person, but rather to defeat the elements of his agenda which I do not believe are in the best interests of the Association. Those wishing for a cage-match mentality may be sorely disappointed.

WHAT IS GOING TO HAPPEN?

This is extremely hard to predict. The Board has not fully deliberated the matter, and given the approaching date of the meeting, it appears Director Ballweber intends to go forward with the meeting without consensus or resolution of the Board. This will likely take significant time at the meeting to determine the sequence of motions, whether it meets the expectations of Petitioners, and whether the actual language of the Motion to Amend Bylaws is the oversimplified auto-barring, or whether it is given time for proper development, deliberation, and informed voting that will result in a change to the Bylaws that has the best effect – to avoid catching dolphins in the proverbial tuna net.

Those like myself and Director Johnson, who remained on the Board until 8/27/19 and advocated for a whole-board removal while sitting on the very same Board, shouldn’t be penalized for having correctly remained to avoid abuse of AWAM by Director Flanary (and Directors Buck Hammond and Gloria Jones).

And, while I suppose this leaves Directors faced with such dilemmas the option of resignation to perhaps avoid the consequences, the fact that we have rarely seen ANY Director serve full terms without resignations is a problem of a different type. People who use election and resignation to strategically give allies on a Board powers to appoint more allies is an abuse seen across Colorado. Dynastic power is just as problematic as Directors who cannot stay within compliance boundaries, or have personalities that others don’t like.

We need volunteers who are committed to serving their terms (knowing the term before volunteering for elections being a key requirement), and those that resign prematurely should also not be allowed to rejoin the board, perhaps for the remainder of the time in their original term. We’ve had people at meetings say out loud they’ll just get elected and immediately resign to prevent another homeowner from serving. These political games should not be allowed.

While I would hope that all things here are considered, I am concerned that we have another meeting with contentious debate that is fueled by a lack of thoughtful preparation. Whether or not Directors Flanary or Mowery are removed, and removed fairly, is already manipulated by keeping people from having Zoom Access which affects the total number of votes, and subsequently the 67% ratio. Driving down participation increases the likelihood of Mowery’s removal, and increases the chance of Director Flanary’s 17 proxies avoiding his. The Chair should not make rules based upon any biases.

The right thing to do about amending the Bylaws is to table the motion to another meeting, and to have a process to get the language right – and get it reviewed by an attorney before voting. It is hard to say whether logic and reason will overcome emotion. Some Petitioners have engaged in hypocrisy and double-standards, when reviewing their past actions and statements. And, the lack of thought put into the sequence of Motions and lack of preparing an actual Amendment to be sent for review with the Meeting Notice demonstrate, once again, that we are tipping towards what Robert’s Rules warns about in the Preface: Tyranny of the Majority.

The majority shall prevail, but the minority shall be heard and the absent shall be protected. These are principles of Robert’s Rules of Order, and we at POHOA have a difficult time understanding the concept sometimes. Perhaps we turn a corner this time, but I’m not getting my hopes up too high yet.