THIS JUST IN: POR BOARD NOT REQUIRED TO FOLLOW OWN RULES

(It will help you understand this posting if you have read the “recap” post immediately preceding this one. )

After thinking through our various strategies to protest the unlawful and unjust fine assessment made against us by the Board in its January 16^th letter to us we decided to take the step of filing formal complaints against each member of the Board who were in office when the letter was issued. We filed our three complaints on February 16^th (and amended them on the 17^th, although the correspondent writing to us below failed to take note of the amendments to our complaint). 

The complaints against Directors Popp, Tarrence, and Rasmussen were all the same.  We complained that, when they issued the fine assessment to us on January 16^th they broke the Rule (VI. C. (5)) that required them to have received a written complaint before considering any penalty and that required them to fully, fairly, and objectively investigate that written complaint before taking any action.  As discussed in the recap post, they absolutely had no complaint (but lied and said they did) and they did not do a full, fair, and objective investigation because they never spoke to me about what happened and I was one of three persons present.  We don’t believe they ever spoke to the third person present, either, and she was the one who was hurt in the dog altercation that occurred.

What would you do if you were the only three directors of a nonstock Wisconsin corporation; you are mandated by State law to strictly comply with the corporation’s rules; and you are all very solidly and credibly accused of intentionally violating those rules for the express purpose of harassing one of your corporation’s members?

In those shoes, I would hire a competent lawyer to help protect my backside, wouldn’t you?  Your Board of Directors has not done that, to my knowledge.  As a lawyer, I can tell you quite frankly that your Board gives every indication that it is not receiving competent legal advice in the matter of our protest.

If I didn’t hire a lawyer but had nothing to hide, I would appoint a blue ribbon panel of the best qualified neutral Residents to review our actions.  We k have members in our Association who are illustrious lawyers, educators, business executives and so on, who know how to read Bylaws and Rules and who would not be afraid of speaking truth to power.  Why not call on them?  The Board could have selected such a panel of Association members, given them carte blanche to investigate fully, fairly, and objectively, and let the facts win out in the end.  That would have looked pretty good to the rest of us, right?  Would I have received the email included above?

So, what did the Board do?  Its entire response to our three complaints is set out below verbatim:

____________________________________Start

Mr. Kurtz:

Below is the response to your "General Complaint", issued from the http://www.thepointontheriver.org/ web site to all POR board members as of that date.

Although you sent three identical complaints, one to each Board member, this single response will serve as the response to all of them.  Furthermore, Lynn Tarrence is no longer a member of the RC nor BOD, and Robert Popp is not a member of the RC, rendering any response from him moot as the violation was issued from the RC.

1.            Under Bylaw Section 2.2.2.1(h) the Board has the authority levy fines against Unit Owners for Rule violations.

2.            Under Bylaw Section 2.2.2.2(i) the RC has the authority to levy fines against Residential Unit Owners for Rule violations.

3.            Under Bylaw Section 2.2.1 the actions of the RC are subject to review and authorization by the Board.

4.            Rule VI.A.2. Permits the Board or the RC to initiate an enforcement action without a complaint being made by an Owner.

5.            The violation letter issued on 1-16-15 re. Violation of Rules IV.B.5, IV.B.7 and IV.B.8. (the dog bite incident on 1-9-15) is within the scope of authority granted to the Board and the RC. 

6.            The 1-16-15 violation letter is hereby deemed to have been issued by the RC and is hereby approved by the Board.

7.            The members of the Board and the RC were acting within the scope of their authority under the Rules and Bylaw Sections 2.2.2.1. (h) and 2.2.2.2(i) when the 1-16-15 letter was issued.

8.            The approval of the actions by the RC by the Board is within the scope of the authority granted to the Board under Bylaw Section 2.2.1.

9.            Consequently, there has been no violation of Rule VI. by Dave, Bob or Lynn.

10.          Furthermore, the Board’s proper enforcement of the Rules cannot, by definition, be a “Nuisance” under sec. IV(R)(1), and because your  alleged “violation” turns on whether the Board followed the Association Rules when issuing the fine, there are no facts the Board needs to investigate with respect to your complaint.

Thank you for using the POR's On-line Complaint system,

/s/ Poul David Rasmussen

------------------------------

Dave Rasmussen 

414-520-8505
@worstHOApresidentever

_______________________________________END 

Let’s parse this response out with some care: 

1.        Who is it from?  Dave Rasmussen, Board President. This is to point out that the memo is status quo. Dave speaks for both the Board and the Residential Committee and imputes actions to each whether or not they have actually taken such action at a duly called meeting, whenever he feels it necessary to do so. 

2.       What does the second full paragraph say?  

“Furthermore, Lynn Tarrence is no longer a member of the RC nor BOD, and Robert Popp is not a member of the RC, rendering any response from him moot as the violation was issued from the RC.” 

This second sentence seems to say that our complaint against Lynn Tarrence is [not clear what—not a good complaint?] because she is no longer a member of the Board or the Residential Committee.  That sure isn’t a correct statement of the law.   

This sentence also seems to say that Mr. Popp, the third Director from the Commercial Section, is not a member of the Residential Committee so anything he says about this matter is moot.  The sentence does not make any sense but is also not relevant.  Director Popp is fully accountable for the issuance of the bogus fine assessment letter and has to date never suggested that is not.  

Here is how the January 16, 2015, letter to us begins:  “On behalf of the Board of Directors of First Place Condominium Association….”  That seems pretty clear to us.  What do you say? 

3.       What do items 1 – 5 mean or say? 

a.       Nothing of significance and they are reasonably accurate for as far as they go-which is not far enough. The Board and the Residential Committee are charged with maintaining order in the building, where 147 different households reside, mostly peacefully.  No one is questioning the authority of the Board to act within the Rules.  Our challenge is that in this case the Board has gone far outside the Rules (ultra vires acts) and has done so intentionally to harass us cause us discomfort and insecurity about our ability to continue to live here, safely and comfortably. 

4.       What do items 1 – 5 fail to mention? 

a.       Rule VI. B. is not mentioned.  A written report of a Rule violation is required to be reported to the Board or the applicable Committee before the Board or applicable Committee may initiate an enforcement action based on a complaint.  

b.      VI. C. is not mentioned.  This is the Rule about the process the Board must go through before issuing an enforcement action (full, fair, and objective investigation etc.) 

5.       What does the Board say in item 6? 

“The 1-16-15 violation letter is hereby deemed to have been issued by the RC and is hereby approved by the Board.” 

This sentence goes to the toxicity of Mr. Rasmussen’s Board and Residential Committee leadership.  Whatever he says goes.  It doesn’t matter that there are no properly called meetings; no records of who attended; no votes recorded. He is completely free to say:  “The Board has done this, and the Residential Committee has done that, because I say so.”  No questions may be asked and no explanations or evidence of good practice will be provided.  

6.      What does the Board say in item 7? 

It is very hard to make sense of the statement in item 7.  First of all, let’s get serious about the involvement of the Residential Committee with issuance of the fine assessment in the January 16^th letter.  It was Nil.  Nada. Nothing.  The references to the Residential Committee in this sentence are smoke and mirrors to keep us from seeing what is really going on.   

This sentence, once pruned, appears to say that the Board was acting within the scope of its powers in issuing the January 16^th letter.  That is hardly an accurate statement. 

a.       Section 2.2.2.1(h) of the Bylaws says that the Board has the power to levy fines against Unit Owners, the Commercial Committee or the Residential Committee for violations of the Rules and Regulations.  That is a true statement for as far as it goes.

b.      Section 2.2.2.2.(i) says that the Residential Committee has the power to levy fines against Residential Unit Owners for violations of the Rules (subject to the approval of the Board).  This is irrelevant smoke and mirrors but harmless because it is correct. 

It looks like all we have here is that the Board may levy fines for violations of the Rules.  But I don’t think it is reasonable to conclude that the Board may levy fines in violation of the Rules.  That would be an incredibly wrong approach to condo governance—to say that the Rules do not apply to the Board.  (But isn’t that what the author is actually saying in item 7?) 

7.      Item 8 is also meaningless. So what if the Board approved the fake action of the Residential Committee that never actually happened. As I have observed over the last three years, our Board does this all the time.  

8.      Item 9 says this:  “Consequently, there has been no Violation of Rule VI. By Dave, Bob, or Lynn.”  

I guess this is the nonsense we get when our Board investigates its own alleged wrongdoing.   

9.  Item 10 is the Grand Finale. It states: 

“Furthermore, the Board’s proper enforcement of the Rules cannot, by definition, be a “Nuisance” under sec. IV(R)(1), and because your  alleged “violation” turns on whether the Board followed the Association Rules when issuing the fine, there are no facts the Board needs to investigate with respect to your complaint.” 

a.       In this incredibly obtuse statement our violation now appears in quotation which suggests that it was never taken seriously.  Why does the Board not have to take our allegation of very serious wrongdoing by the Board seriously?  Apparently because the Board followed Association Rules when it issued the fine.  That is so incredibly wrong that it is almost impossible to believe we have Board members who will write this kind of bologna.  I agree that the Board may not have violated the parts of the Rules cited by the author of this sentence.  But who says the Board only has to follow the Rules it agrees with? I understand that may be Dave Rasmussen’s view of how things work but it isn’t mine and it isn’t the view of any court of law in this country, I know that.   

b.      Let’s read the sentence above from my point of view, i.e., that we have credibly alleged improper actions by the Board and that we presume that the Board is required to follow all the Rules.  Here is what I come up with: 

“The Board’s alleged improper enforcement of the Rules cannot be an actual violation of the Rules because the Board was acting in compliance with those sections of the Rules the Board has determined really apply to the Board; as a result, since there has been no violation of the Rules (that we feel apply to us) there are no facts the Board needs to investigate with respect to your complaint.”  

c.       If you don’t agree with my translation get out your copy of the Rules and Bylaws and come up with a better reading.  My bottom line is that David Rasmussen does not feel that his actions must conform to our rules and his colleagues on the Board and on the Residential Committee agree wholeheartedly with that position. 

To address the easy dismissal of our complaint that the Board’s actions violated the nuisance rule, please read on.  According to the Rules, a “nuisance” is a thing, act, or condition or use of property which continues for such length of time as to: (i) substantially injure or endanger the comfort, health, repose, or safety of the Condominium or Owners or Residents; or (ii) in any way renders Owners and Residents insecure in the use and enjoyment of property; or (iii) any other act or omission which would otherwise be recognized as constituting a public nuisance pursuant to the statutory or common law of the City of Milwaukee or State of Wisconsin. 

a.       If, as we have alleged, the POR Board failed to follow the Rules when it wrongfully assessed a monetary fine against us, because it lied in doing so and failed to satisfy all of the requirements of the Rules, it seems to me, we believe that is, indeed, a nuisance under the Rule cited above.  Here is why:

The unjust and illegal fine assessment is an act that has substantially injured or endangered our comfort, health, repose, and feeling of safety in our condominium home at the POR; it has rendered us insecure in the use and enjoyment of our home. --H. A. Kurtz 

All you need to know is this:  If David Rasmussen can do this once, he can do it twice; if he can do it to us, he can do it to you.

Brief Recap of Our Protest Before the Next Big Story

By letter dated January 16, 2015, the POR Board assessed a fine against me for violating Rule Iv. B. (5) which requires us to “take all reasonable actions to prevent m dog from being a danger, nuisance, or annoyance” to another Resident or guest.  By use of the word “reasonable” the rule’s standard for conduct is that I must not be “negligent” in my conduct as regards my pet.  Okay, I accept that the rule exists.  I also would point out that it is not a simple matter for the Board to find me negligent if they never talk to two out of three persons in the small space in which the dog altercation occurred.  I do not believe I was negligent, at all.  I have said, however, if there ever was a full, fair, and objective review of what happened and I was found negligent by an objective group of three persons, then yes, I would shut up and pay the fine.  Nothing like that happened, of course, as you will see in this post and the next.

The January 26^th letter included the following statements:   

“On behalf of the Board of Directors of First Place Condominium Association…We have communicated to you…after receiving all of the appropriate documentation from the effected [sic] resident(s).  We have thoroughly reviewed the complaint, the rules for the Association, and the statements from documented witnesses.  The findings of fact are that the complaint was valid, rule(s) were violated, and the Association does have a duty to act on the matter.… While the Board of Directors would like to voluntarily settle this event with the investigation, findings, and a $50 fine, you do have the right to appeal in accordance with the Association Rules & Regulations.”

For the record, it is absolutely crystal clear that the Board did not have a complaint from a resident on hand when this letter was sent.  Every reference to a complaint and an investigation of a complaint is a bald-faced lie.  This is a fact that cannot be disputed.  The Board also said it thoroughly reviewed statements from the documented witnesses but it issued the fine assessment letter without ever talking to me and I don’t believe they ever talked to the person who was injured.  This means they did not do the work necessary to justify any sanction, much less the most serious sanction of all.  The letter is so full of lies it should be shameful to the Board to have ever written it.

Rule VI. C. authorizes the Board to take action on receipt of a written complaint by (1) issuing a warning, (2) issuing a written request to cease the offending behavior, or (3) levying a fine if that is warranted.  When determining which of these actions the Board should take, the Board is required by Rule VI. C (5) to take the following actions:

a.       The Board shall investigate the facts before administering the fine.

b.      The investigation shall be fair and objective.

c.       The investigation must produce substantial evidence of the violation.

d.      The rules and penalties shall be applied evenhandedly and without discrimination.

e.       The penalty shall be reasonably related to the seriousness of the offense and the past record of violations.

Do you see our problem with this letter from the Board?  Condominiums are difficult places to live, especially the kind we have, where people are piled on top of each other and need to use the same hallways, entrances, garage doors, and so on, every day.  Life is not easy for dogs here, either, even if we have declared that we are “dog friendly.”  Dogs get startled by quick movements.  Anything moving directly toward a dog is a threat to the dog.  (Ever notice how dogs approach each other—from the side, indirectly—at the dog park?  Things do happen between dogs, their owners, other dogs, and their owners.  Dog owners realize this and manage their affairs accordingly. 

When the Board puts its nose into the affairs of dog owners in the condo it should be really big news.  The Board needs to exercise its powers carefully in this situation, in my opinion.

Anyway, it is obvious from the January 16^th letter and the related facts that none of these five steps and considerations were undertaken or considered by the Board before the fine assessment letter was sent.  There was no investigation.  Since there was no investigation it could not be have been fair and objective. The investigation did not produce any results because it never occurred.  Given that the parties to the dog altercation that the Board was referencing in its letter completely resolved the matter and agreed that it was an accident on the day after the event (on the morning of January 9^th), was there even any good reason for the Board to take action of any kind?  I don’t think there was, but you may disagree.

Our protest against the Board is about abuse of process by the Board.  It is a protest against Board harassment of an owner for purposes of the Board President’s personal vendetta against that owner.  Our protest is intended to remind our Board President that he, too, is subject to the Association’s Rules.  His lying about receiving a complaint and his failure to do a full, fair, and objective investigation before a fine is assessed are flagrant Rule violations and someone needs to speak up and say, “Hey, Mr. Emperor, you are wearing no clothes.” 

It is our effort to reinstate the rule of law in a condominium government that has gone so far astray from the law and the condominium association’s rules that it shocks the sensibilities of anyone who becomes aware of these facts.

Our position in this protest should be very clear by now:  “We are mad as hell and we aren’t going to take it anymore.” 

Owners' Voice Left Out in Selection of New RC Member

When the Residential Committee vacancy materialized recently it also created a vacancy on the POR Board that the remaining Residential Committee members filled immediately by electing Mr. Biggart to the Residential Committee and then to the Board.  I call this a coup d'état because it is a successful grab for total and absolute power without taking into account in the slightest possible way what is in the best interest of condominium Owners (Residents).

Here is what the two Residential Committee members should have done:  They should have used a process commonly known as merit selection.  First, the remaining members of the Residential Committee should have announced the vacancy; appointed a committee of qualified and disinterested volunteer Residents to serve as a nominating panel who and directed them to (1) screen applicants for the Residential Committee, (2) vet their credentials, and (3) be sure to consider such things as gender and residence-location into account.  (I personally think a woman should have been elected to replace the woman who resigned, but that's merely my opinion.  What do the women Owners say?)

This panel should have been instructed to recommend a short list of candidates (say a minimum of two) to the Residential Committee. The Residential Committee should then have chosen one of the persons vetted by the panel and elected that person to this important office. Wouldn't that feel better than what has happened? 

So there you have it:  We have truly experienced a coup d'état guaranteeing that one person continues to have absolute control of our Association governance. As many so often say, "we get the government we deserve." 

Potential Legal Action? I face that every day, potentially, don't you?

CHAPTER 9:  ABUSE OF PROCESS COMPLAINT.

In the email announcing the Rasmussen coup d'état (more on that later) on Thursday, February 19, 2015, Dave Rasmussen said that, as a reaction to "potential legal action" the Board (he and Jerry Biggart) "may be forced to issue a special assessment later in 2015 as this activity is an unbudgeted expense."  In addition he said, while our officers are protected by Directors and Officers Insurance ("D & O Insurance"), if we are forced to file a claim, we anticipate our premium would be negatively impacted."  Let's parse this statement out a bit. 

First, if the Board had not sent the Larme Kurtz household a false and fraudulent fine assessment this whole mess would not have arisen.  Shooting the messenger is one of the Board President's special talents, as anyone who has sent him a critical email or complaint knows.  The sender gets an immediate and profane diatribe in response making it completely clear that there is no hope of an adult discussion of divergent views.  

Second,  our discussion of the potential ramifications of a lawsuit with the Board should not be considered making a threat of a lawsuit.  Threats are clear and direct statements that if A doesn't happen, we will do B.  We haven't done that because we have been hoping reason and common sense would kick into this mess at some point.  In our Protest Letter (you have all received it) we were very careful not to make any threats.  We also made no demands. All we did was ask that the invalid fine assessment be withdrawn (as lawyers would say, "with prejudice," meaning that the Board also wouldn't just turn around and make another assessment on the same facts the next day).  Our point in doing this, as I explained in detail to Lynn Tarrence by phone, some time ago, was to give the Board an opportunity to come to their senses and withdraw the fraudulent fine assessment letter before our lawyers sent a "demand letter" that would have to be disclosed to the Insurance Company.

We have not asked our lawyers to send that demand letter so far. That means we haven't decided anything about our next step except that we are going to appear at the "Appeals Hearing" set for Saturday, April 11, 2015, at 10:00 in the Board Room.  (That's when the Board, which fined us improperly, reviews its own findings (there aren't any) and determines if their earlier determination of violation was correct).   We are holding our breath with suspense to see the outcome!  You are all invited to attend.

Third, part one, it is important in all of this to know the rules of the game--instead of making them up on the fly.  The Association's Bylaws forbid the Association from indemnifying (paying for the mistakes of) its Officers and Directors for costs arising out of each member's own bad faith or willful misconduct.  I have to say I am not at all sure the Association should indemnify the Board for any costs its members incur for defending a clear act of bad faith and willful misconduct.  As a Resident and member of the Association and a lawyer I would have to say I would have a huge problem indemnifying David Rasmussen one dollar of his defense costs in the potential litigation he is trying to scare us all about.  What do you think about this language?  Do you think the Board members have read it?  I bet I could name a former Board member who read it or whose own lawyers read it. 

Third, part two, now take a look at Section 4.9 of the D & O policy.  Here is one of the many things that policy excludes from coverage:
 

4.9 [any event] based upon, arising from, or in any way related to … (b) any deliberately dishonest, malicious or fraudulent act or omission or any willful violation of law by any Insured; provided, however, this exclusion shall only apply if it is finally adjudicated that such conduct in fact occurred.

 

Hmmm, I wonder what this means about covering the Board's fraudulent fine assessment of the Larme Kurtz family?  Well, we won't know until the situation is "finally adjudicated" and I have no idea what the means.  It might mean bad news for the Board, for sure.

Our bottom line is that none of this is of any concern if the Board President could, for perhaps the first time ever, admit that he was wrong, out-of-line, and sorry that the January 16th letter was ever written and he promises to follow all the Rules strictly in the future.

 

 

 

CHAPTER 8:  ABUSE OF PROCESS BY THE BOARD.  I get a lot of good ideas while sleeping. This morning, as I woke up I realized that we need to turn this mess around. Right now I am the only one with a rule violation and fine on the record.  My rule violation and fine are the result of illegal actions by the Board and the Board's willingness to lie to make me as uncomfortable here at the Point as possible.

We tried to explain to the Board the error of their ways in the 17 page letter I referred to in an earlier chapter and the response was the scheduling of the April 11th hearing at which the only subject for discussion allowed is whether or not I was negligent as I quickly tried to grab my dog after we were both frightened by a solid door opening at 11:00 pm immediately in front of us.  The legality of the fine assessment will not be permitted to be discussed. Okay, so the authority to apply that restriction in the appeal hearing is nowhere to be found in the Rules so why can the Board do it? 

But, in the meanwhile:

I filed Rule violation complaints against each of the Directors for issuing a notice of assessment under Rule VI knowing that they had no Resident complaint on hand. By doing so they violated every procedure in the Rule book governing the issuance of fine assessments by the Board.  Every one. How can they get away with this and how can be stopped from doing it again, to me or to you?

The idea is to see if the Board treats themselves any differently than they have treated me.  I assume that they will do no full, fair, and objective investigation and that they will immediately fine themselves for their unconscionable behavior.  Anyone think that will happen?

I will certainly let you know what, if anything happens.  I know the Board President does not feel the Rules restrict him from doing anything he pleases so maybe he will just ignore my complaints.  (It only took him a week to fine me without even receiving a complaint.)

Here is the language I used to describe the violation of the Rules by the Directors:

Director [Robert Popp] [Lynn Tarrence] [David Rasmussen] has violated substantially all of Rule VI by reason of sending us a notice of fine assessment that purports to be based on a complaint under VI.B when, in absolute and incontrovertible fact, the Board had received no such complaint before the date of the letter.  In addition Director [Popp] [Tarrence] [Rasmussen] took none of the actions required under Article VI before a notice of fine assessment may be issued.  This action has severely damaged our comfort, repose, and feeling of safety in our home (see Rule IV.R).  We have lost hours of sleep worrying about what else the Board can do to us if it can get away with this illegal conduct in blatant violation of the Rules; we have incurred significant expense of time and resources trying to figure out how to combat the actions of a Board that seems to be out of control; and we remain worried about our personal safety in such a hostile environment.

Stay tuned for Chapter 9.  This thing is only going to get worse until the Board is removed.  

CHAPTER 7:  ABUSE OF PROCESS BY THE BOARD.  WHY YOU SHOULD CARE (REALLY).

1.  You should care because if the Board president and Second Director can do this to me they can do it to you.

2.  You should care because the Association's Director and Officer Liability $2 million dollar insurance policy excludes from coverage the following:

4.9 based upon, arising from, or in any way related to:

(a) any Insureds gaining in fact any personal profit, remuneration or advantage to which they were not legally entitled; or (b) any deliberately dishonest, malicious or fraudulent act or omission or any willful violation of law by any Insured; provided, however, this exclusion shall only apply if it is finally adjudicated that such conduct in fact occurred.

I don't yet know what "finally adjudicated" means but I will definitely discuss this with the insurance company soon and get back to you. Do you want to pay personally for this insanity by your Board?

It does seem to me that the fine assessment I received is, in fact, deliberately dishonest, malicious, and fraudulent--the whole enchilada.  

Won't you be a little bit pissed if you find that your Board president and Second Director cost the Association a bundle in legal fees and terrible media coverage affecting market values when we litigate our claims and there is no insurance coverage?  Would you like to see the Association indemnifying the Board President for the costs incurred to defend this kind of behavior?  Would you feel a resulting special assessment is fair?  Why not protest now, before that eventuality becomes a reality?  We want to be treated just as the Rules require. No better but certainly no worse.  Let's get the petition filed to call a Residents meeting and throw the rascals out.

Oh, and you should know that the legal standard applicable to Mr. President and the Second Director is this:  They are required by law to comply strictly with Association Bylaws and Rules in everything they do.  The Board has not come close to strictly.  They haven't even tried to comply with the Rules and are still not doing so, even though we have educated them fully (at our expense) about their duties under the law and the Rules.

We have been patient thus far but I hope you can see that what we are getting in return is insanity.  Isn't it time to tell Mr. President and Ms. Second Director that they must resign because the are truly unfit to serve?  I will try to keep you up to date as things develop. For now I have to talk to the D &O Insurer on Tuesday when they reopen.

CHAPTER SIX:  ABUSE OF PROCESS BY THE BOARD.  Why should you care?

We feel threatened by this craziness for lots of reasons.  If the Board can get away with this, what can't it get away with?  If one person (the Board president (aided and abetted by a compliant co-director and another co-director who doesn't feel engaged in the Board's activities) has this much unbridled power, where does the misery end for the rest of us?  Is this step one in an attack on our 18 pound dog as a substitute for attacking me since the dog can't fight back? Are we going to be forced to choose between our condo home and our dog? Isn't this a "dog friendly" condo and doesn't that mean there is tolerance for dogs who accidentally screw up, especially really cute ones like mine, who is adored by everyone who meets her in a safe environment?  I mean, aren't the dog lovers out there infuriated by a non-event like this one causing the Board President to issue fines without complaints just to harass us?

On the same day that David B. called the police to report the dog "bite" (22 days after it happened) he also threatened us by email in a manner that was technically a felony (extortion) punishable by at least one year in jail. On the same day, David B. filed an actual complaint about the bite with the Board, which the Board has acknowledged is the first time such a complaint was filed. David has every right to do what he did, except the extortion part, but we cannot understand why he made this 180 degree turn.  We have our suspicions, though, and they are not pretty. We start our resistance campaign to the Board's unlawful actions and harassment and suddenly, out of the blue, things change.  Hmmm....

We don't actually care much about what David B. did after he gave us his written statement that the event was resolved and he agreed it was an accident. The "bite" is history and we would be surprised if anyone takes his change of heart seriously.  Except our Board of course.  They are taking it as Gospel and have claimed that this change of tune by David B. somehow excuses their lying and fraud presented so clearly in the January 16th letter they wrote.  Wow; if do-overs like this were permitted by offenders, generally, wouldn't the jails be empty?  How stupid do they think we all are?

Nothing occurring after the Board's issuance of its fraudulent fine assessment makes one whit of difference to us. The Board lied in that January 16th letter (seven times by our count) and nothing happening after that date changes that fact. The letter is pure harassment implementing yet another round of trouble for me as part of David Rasmussen's years long vendetta against me.  The fine assessment based on a complaint that did not exist has nothing to do with maintaining order at the POR. David Bagley and I had fully resolved all open issues before the letter was even written and had agreed the event was an accident.  Why did the Board turning this excellent result into a harassment campaign against my family?  And what is David Rasmussen's basis for blaming me for all this trouble?  If he had been truthful in his actions and not vindictive, nothing would be going on at all pertaining to the events of the late evening of January 8, 2015.  If I don't stand up for myself, who will? 

Oops.  I forgot to tell you why you should care. See Chapter 7.

CHAPTER FIVE:  ABUSE OF PROCESS BY THE BOARD.  So here we are.  Protesting a fine assessment based on a blatant lie created by the HOA Board President because he despises me and views this as a perfect opportunity to do me harm and make life unpleasant for me here at the POR. Wouldn't you be uncomfortable if this happened to you?  We are fighting this particular abuse of process by the Board because it is so unbelievably typical of the current HOA Board to do whatever they please and to rule by bullying and force.  This is not how condo life is supposed to be and we think this behavor has to stop. I can't imagine finding this level of insanity in any other top tier Condo in this city.  But here we have it in spades.

Will we attend the hearing on April 11th?  Well, get this.  A fine assessment by the HOA Board automatically becomes an enforceable lien against our condo if we don't pay it.  Interest compounds astronomically. The Board can add its costs related to the hearing if the assessment is upheld.  We might get thrown out of court with our lawsuit against the Board if we don't "exhaust our administrative remedies." So yes, we will attend and protest the validity of the assessment.

Oh really?  No, probably not. Here is what theBoard's letter says about the April 11th hearing:  The sole fact issue for determination at the hearing will be whether Rule IV.B was violated because Mr. Kurtz did not take "reasonable actions" to control the dog so that it was not a "danger, annoyance, or nuisance" to others.

This is what the Board is required to have determined before the fine assessment was made.  It didn't do that, of course, because the president was so eager to attack me he forgot to follow the clear requirements of the Rules and, of course, forgot to notice there was no complaint.  So the Board has ruled out any discussion of whether the fine assessment was in fact validly issued.  The only discussion allowed will be whether a rather vague rule was violated.  Well, of course, this is absurd you are thinking.  So are we.  What would you do if you were in our shoes? Fail to show up and have that taken as a waiver of your objection to the assessment in the beginning?  Show up and be ruled out of order every time you try to speak? Did you know that the Board has total control over who can be in the room?

Yes, we will be there.  I hope you will be too, but good luck getting in the door.

CHAPTER FOUR:  ABUSE OF PROCESS BY THE BOARD.  Okay, that is the substance of  the situation that is making our lives in our condo home very stressful right now.  We know the two people who are in total control of everything pertaining to this invalid and illegal fine assessment are joined in this campaign of vengeance or revenge which is very real and hateful, but which actually has nothing to do with the problem our dog had late on the evening of January 8th because no complaint was ever filed.

Wait, the story gets a lot more ridiculous (and dangerous for us).  So when I wrote the Board that the fine assessment was invalid, citing chapter and verse of applicable state law and of the Condo Association's rules, the Board took that as a request for an appeals hearing.  Thoroughly and completely misreading the Rules (or more likely ignoring them), the group scheduling the appeals hearing was the Residential Committee.  It has to be the Board under the Rules.  Of course, what difference does that make since the president of the Board and his minion co-Director (let's call her "Second Director") constitute a majority of both the Board and the Residential Committee.  We haven't yet told the Board about the screw up that it has the wrong group performing this "appeal hearing,".

But what's your feeling about us having to appeal this defective fine assessment?  It's the equivalent of a parking ticket written out by a clown and placed on our windshield, isn't it?  How do you appeal something that is illegal and invalid from the beginning?  Well, having learned in years of legal practice that it is far worse in cases like this to fail to show up than to show up and argue that the proceeding is invalid, we eventually (and timely) agreed to be present at the appeal hearing.  By then, the Board (actually the Residential Committee) had scheduled the hearing without clearing any dates with us and sent us a letter that the hearing would take place and a record would be created whether or not we showed up but the hearing could be deferred up to a maximum of 10 days if we requested.

As it turns out the hearing could only be held on days when the Board President could be present in person.  These are weekend days because he is out of the city Monday through Friday every week.  Although he does most of his governing work and holds nearly all of the pretend Board meetings over the phone or by email, this particular hearing could not be held without him being physically present.  You know what this really means:  he has to be present to be sure Second Director doesn't get out of line and vote the wrong way.  So the appeals hearing is ultimately scheduled for April 11th, a Saturday, at 10:00 am.  You are all invited to attend (but I bet Mr. President won't let you in the room.)  Will we attend this hearing?  Stay tuned for chapter five.

CHAPTER THREE:  ABUSE OF PROCESS BY BOARD.  So, the question is how does it make sense that the HOA Board at the Point on the River Condo refuses to withdraw a fine assessment against me when it is made clear that the fine assessment was based on a lie (i.e. that there was a complaint filed) and none of the required processes under the official Rules was followed?

It makes sense once you understand that the Board President despises me as much as a person can despise another person.  The cause that I have given to him is that I do not hesitate to point out to him the many occasions on which his governance style (dictatorial, arbitrary, and no one's views but his on any subject are valid) violate State of Wisconsin corporate law, the HOA's Bylaws, and the Rules, not to mention common sense and human decency.  He is profane and derogatory to any Resident who questions anything that has been done--which isn't easy because it is all secret. There are no open Board meetings; no attendance or minutes are kept; and magically everything is done by unanimous consent (except I suspect no votes are actually held).  But he despises me.  He has used his power to appoint committee members to remove me from two committees; in one case for no reason and the other one for expressing my free speech right to suggest that maybe the Board should have open quarterly meetings and maybe there should be a candidate forum before the annual election so Residents could ask some questions (and some of the smoldering anger against him by a number of Residents could be defused).

It also makes sense when you understand that this president takes no guff from the other two directors.  One is elected by the commercial residents and never seems to appear or vote on anything.  He has never responded to any email I sent him about issues concerning corporate law and Board meetings.  The other is elected by our three person Residential Committee.  The Committee elects two of its three members to the Board.  So, basically, two people have complete control over everything and the Board president has total and absolute control if his co-directors are not engaged or do not have the strength of character to stand up to him.

As of the December 7, 2014, Board meeting our president's fellow Residential Committee member director is no longer his best buddy. Now, his co-Director is a person who complains about the Board president constantly to others but who has yet to disagree with him on anything.  She has fully endorsed the fine against me, as has the third director by his silence.  I attribute this to her lack of character and her dependence on men to tell her what to do.  These are terrible qualities for any corporate director ,of course.  But just because the president really doesn't like me is he exempt from the law and the Rules?  I hope to prove that is not the case.

CHAPTER TWO:  ABUSE OF PROCESS BY BOARD.  I am now in possession of a notice of fine assessment based on a complaint that absolutely and completely does not exist.  So I emailed the neighbor whose girl friend did get "bit." He said again that he did not file a complaint and he gave me this statement in writing:

Harvey,

Please feel free to use this as written documentation:

I do not and did not want to file a complaint against you. My intention all along was to identify you so that I could speak with you and verify your dog was current on its shots. When we spoke last Friday I was 100% satisfied with your apology. Also I fully understand this was an accident.

If you need anything from me please feel free to contact me.

Thank you,

David B.

That seems pretty clear, doesn't it?  So I asked that the fine assessment notice be repealed.  What I got back in less than 32 minutes from the Board President was an email that said the Board had decided there would be no rescission and had decided that it was itself going to file a Board complaint so the assessment stands as is.  (Of course this is all lies.  I immediately called another Director who said there had been no Board meetings and no emails received by her that entire day on the subject of my fine assessment.  And, of course, if there had been a Board determination of the fine it would have had to have been preceded by the same things the Board was required to do with a Resident complaint:  Basically, a full, fair, and objective investigation was required.  There were three persons and two dogs involved in the incident.  No one from the Board ever spoke to me about the incident before the January 16th date of the assessment letter.  

So at this point the Board is standing by its assessment notice which contains the lie that they had received a complaint from a Resident and after which the have received a copy of the email copied above.  How does any of this make sense? 

CHAPTER ONE:  ABUSE OF PROCESS BY BOARD.  I received a notice of fine assessed against my condo unit on the 23rd of January stating that a complaint from a resident had been received about a dog altercation that did actually occur around 10:45 pm on January 8th.  The letter was dated January 16th and came to me unsigned from our Professional Management Company (whose president claims they have no responsibility for anything because the Board President has told them if they don't do exactly as he says their contract will be terminated.  Would the law agree that they are free of any obligation to follow the condo association Rules?  We don't know that yet but they sure don't follow the rules.

On the afternoon of January 15th the PMC agent for our condo called my mobile phone to say it was a courtesy call before mailing out the "dog bite fine letter."  I cut her off due to my astonishment and the heavy downtown traffic and emailed her that evening at 7:15 pm that I would like her to tell me what rule I had broken before we talked again.  There is, of course, no rule prohibiting dog bites because that would make no sense. Dogs bite and that's why we have insurance.

The astonishing part of that call was that she was sending out a fine notice about an event they may or may not have included a dog bite (the police said, when it was reported to them by a spectator, not the injured party, on January 30th that it looked more like a scratch and the Department of Neighborhood Services said the affected person must not even have seen a doctor because any doctor who sees a patient for a dog bite is required to file a report with them---and no such report had been filed.

But that is not really why I was astonished.  I was astonished because the same witness (the injured party has never said a word about the accident to us) called on us in our home at 10:00 am that ame day to show us the pictures of the "bite."  (Yes, they looked like a scratch but of course we didn't comment on that.)  He said he wanted to know if our dog's shots were up to date.  Since our dog had just been to the vet the week before for shots we assured him that they were.  He said neither he nor his girl friend were even aware of the "bite" until later that evening., after the incident; it was not mentioned when the altercation between the dogs occurred.  But he also said, in a very friendly way: "I have not filed a complaint about this and I don't intend to.  It was an accident and these things happen."

I got the letter by email on January 19th and by US mail on the 23rd. It said the Board had received a complaint from a Resident in the building about the dog incident; that the Board had made a thorough review of the complaint and a thorough investigation of the incident and had determined that I had violated the following rules (every rule about pets was copied into the letter). It did not say the date by which I had to pay the fine, which is a required element and it did not include a copy of the complaint.  I immediately requested a copy of the actual complaint (there is only one way to make a complaint) and never received it, of course, because it does not exist.

Check out CLIC (see link on the right).  This is a related Discussion Group for Condo Life issues.

Year Five of Condo Life in the City

I am now in year five of Condo Life in the City.  The pluses are the wonderful location, the beautiful ever-changing view of two rivers and a slice of a great lake, the lock-and-leave convenience, the absence of yard-work, snow removal, home maintenance and repair (but not completely of course), and general simplification of life when that is becoming more important.

The negatives include a dysfunctional condo Associaton Board that does not understand its own Bylaws and Rules and/or ignores them at every opportunity; offensive and unnecessary rules; fines that are assessed arbitrarily and in excessive amount; tyrannical attempts to control residents by the Residents' Committee and the Board (two out of three positions on each are overlapping so two people control everything about community life and one is a minion and the other a bully so guess who is "in charge"?), several commercial spaces in the condo that are vacant; too low a budget to keep things really nice and clean; and too high condo fees and taxes to feel that living here is a good value as compared to the peace and quiet of the suburbs.

I sometimes feel that part of the negatives list is due to a combination of ignorance and naivete of the volunteers who earnestly believe they have the time and skill to take charge of a large condominium but clearly and painfully don't.

We have a large professional management company under contract but they claim they must do exactly as they are told by the bully running the Board, whether it is clearly a violation of the Bylaws and Rules or otherwise inappropriate or unethical.  Is that the normal position of a professional condo management company?  What do you say about that?