(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
16th 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 16th (and
amended them on the 17th, 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 16th
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
@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 16th 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 16th 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.
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