Let's Find a New Direction

My hope is that the Board has learned a few things in our challenges of its actions.

As has been pointed out to me, they obviously learned that a consent action, such as the new Legal Fee Rule, has to be signed by all three current directors in order to be valid.  When I pointed this out in December--that the Transfer Fee Rule was not properly executed by the three directors then in office--the answer wasn't a simple "thanks, we will fix that right away."  It was "so what are your motives in raising this question, you $%^hole?"  Actually, as I said at the outset, my reason was to have the Board follow the clear legal rules in order to avoid future fights over the validity of a Board action which I supported.

If the Board has learned that it needs to read the Bylaws and Rules, and follow them, that would be an amazing accomplishment and my wife and I could rest easy living here because, to our knowledge, we are totally into following rules that make sense and are fairly applied.  We are, however, not inclined to feel any trust whatsoever that this miracle might have taken place.  We have very substantial undisclosed reasons for believing that two of three of our Residential Committee members cannot be trusted, period.

So what should we do?  Here is my plan.

1.     First of all, I know this blog is bad for the Condo Association and Unit Owners and property values.  I also know that this blog is the reason we are still here.  With almost three thousand page readers it seems clear that people outside this community are looking in.  I will refresh the blog and take out the negativity concerning our experience with the Board President, Board, and Residential Committee if and when we receive a letter (or letters) signed by the three Residential Committee members and Robert Popp (individually or together) stating clearly and unequivocally the following:

I, ______________________________ , will not harass the Owners of Unit 812 at the Point on the River or participate in any harassment of them in any manner whatsoever.  Harassment includes, without limitation, any comments in condo wide communications or any other action by me that interferes with their right to quiet enjoyment of their home at the Point. 

2.   I, _____________________________________________ , promise that  any actions taken by me as a member of the Board of Directors of the Association or as a member of the Residential Committee against the Owners of Unit 812 will be taken in strict compliance with the language and intent of the Association’s Declaration, Bylaws, and Rules and Regulations.

What is so strange about this request is that it only asks that we be treated as the law requires them to treat us.  Nothing more.  Isn't it strange that we have to bargain for this from our elected officers? That is what I want to repair in the actions steps, below.

2.    Second, I am going to spend the next several months blogging about what our current governing documents require and how they should be adjusted to prevent forever the recurrence of the one man rule that is ruining life here for some us (at least two of us, but others have expressed similar concerns privately).  .

3.  At the same time I am going to try as hard as I can to cause the engaged readers of this blog to write collectively a platform of positions and values for a "reform" slate of three candidates to run on in the next election of Residential Committee candidates.  I have tons of ideas arising out of the mess I have found myself in these last three months and I know others have great ideas as well.

4.  Finally, I will, together with others who wish to join me, support and encourage persons who feel motivated to run for office but who have concerns about it.  One of our main commitments will be to make sure that the next Residential Committee will be all new people who are committed to the platform we will have prepared. 

I hope you will join in this effort to restore good government to the POR.  Everyone's participation is needed and will be respected and appreciated.

New "Legal Fee Rule" is a huge mistake and needs to be repealed immediately.

This blog continues the analysis of the last paragraph of the Board President's March 11th "recap" of 2014 and the separate notice we all received dated March 7, 2015, announcing a new rule.

• A new rule was recently crafted and made official, in conjunction with our legal advisers, to insulate owners from unforeseen legal costs.

It is interesting to note that this new Rule was adopted February 23rd and made effective February 26th.  I wonder if this might possibly be targeted at my wife and me?  When we saw it and showed it to our lawyers they said what we have begun to think:  "Life is too short for this kind of treatment; you need to sell your condo and move." Yes, we do talk about that option almost every day.  But, except for the thug government we currently are being tortured by, we like living here and would like to stay if we can once again feel safe from abuse by Association Officers who are chronic Rule breakers who feel they are above reproach.  

Let me first ask why this Rule is even necessary if we already are paying $2,400 a year for $2,000,000 worth of insurance for the same thing?  

One introductory Whereas says that it is the intent of the Board of Directors to limit the potential costs to the association should a member of the association bring suit against the association as a whole. Wow is that inaccurate. Does the new Legal Fee rule really only apply when a law suit is brought?  No, the new Rule doesn't say that at all.  It covers any expense of any kind incurred when a Resident pursues a matter with the governing boards and loses. 

 

Before you can really understand what a huge deal this new Rule is you need to know that in American jurisprudence the standard rule for dispute resolution is that each party pays its own costs and expenses.  Sometimes, the law says the judge may award legal fees in appropriate cases, but it isn't that common that such fees are awarded.  

The second thing you need to understand is that when a condo board makes an assessment against a Resident, the assessment automatically takes on the force of a statutory lien against the Resident's condo. This means that the condo board is acting as a branch of the state government when it makes any kind of assessment such as the Rule proposes our Board can now do.  

Adopting this Legal Fee Rule is like a state adopting a new law.  It is an enormously powerful change in the relationship between Condo owners and the Association.  The important questions to ask before adopting this significant a new Rule are:  Does the Board have the power to adopt this major change in the fundamental relationship of Condo owners and the Association?  Or may this change only be adopted as a Bylaw change, requiring a super-majority vote of Condo owners? Or is it even a legal rule to begin with?

I don't think the Board's rule making authority granted in the Bylaws includes the power to make this kind of change by Rule.  I'd like to ask this question at the next Board meeting. Wouldn't you? Too bad they don't hold any.

There is a lot more to say about a Condo board, with ample insurance to defend itself, deciding in the middle of a controversy with a Resident to adopt a Rule that tells the Resident that, "in the event the Association retains an attorney to collect funds due, enforce any rule, bring any claim against a Unit Owner or defend any claim or allegation by a Unit Owner including any counterclaim, the Association shall, if it is the prevailing party in the claim or defense, be entitled to collect from the Unit Owner all of its costs and expenses, including reasonable attorneys' fees."

This Rule is not restricted to law suits.  So let's talk about how chilling this is to the abuse of process claim that we have made.  There is no argument whatsoever that the Board intentionally lied and broke many Rules. The record is clear and convincing.  So what did we do?  We asked them to reverse their bad act. They said no.  We filed a complaint against each Director for violating the Rules and the Board decided on its own that no Rules were broken.  (Which is wrong in so many ways it is hard to begin to know what to say.)  Then the Board set up an "appeal hearing" and told us that a record will be created whether we attend or not.  They refused to let us bring along three neutral observers and they refused to let my wife attend, who is co-owner of the condo and the dog.  They limited attendance to just the three persons present when our dog did perform a defensive bite when provoked by another Resident (in our opinion).  They say that the only issue that can be discussed is whether or not I broke the rule that a pet owner must act reasonably to control his or her pet; no discussion of the validity of the fine assessment will be allowed; and David Rasmussen (impartial and reasonable person that he is) will chair the hearing.  They said that only the Board President would be allowed to ask questions; and that we would have to pay the court reporter for being there and for the transcripts for the parties under the new Rule.  Plus, we had to assume, we would also be assessed for any legal fees the Board incurred "preparing" for this Kangaroo Court. 

This is pretty chilling on our rights. So what did we do?  We paid the Association $50 to end the appeal process. It was either that, or pay hundreds of dollars for a joke "appeal hearing" that was certain to end up with the Board prevailing.

Try to put yourself in our shoes.  Let's say you want to protest the fact that the Rules currently have the Board or the Residential Committee being assigned the task of deciding all appeals of Rule violations (which are initially made by the Board or the Residential Committee).  Think about how you could do that given the Legal Fee Rule?  You couldn't do it in any reasonable way. That is how we feel right now.

Left the Country for Spring Break and Look What Happened!

While in Cuernavaca, Mexico,  the second week of March, trying to enjoy a little break from the stresses and strains of having to walk around the condo with a target on my back, I received two disturbing emails from the Condo Association Board President, Poul David Rasmussen. Both of them were clearly intended to be  additional harassment of my wife and me in connection with us having called out the Board President and his fellow directors for their lying and breaking of many Association Rules in their bad acts already explained at length in this blog.

The first item I am referring to is the closing paragraph (copied below) of the Board President's email of March 11, 2015, to all Residents of the POR Condo, summarizing the performance of his administration during 2014.  The Board President wrote the following: 

• In a previous correspondence, you were informed that there may be a special assessment later this year for legal expenses resulting from the challenges of an owner with respect to their dog causing bodily harm to another owner/resident. The Board has retained the law firm White, Hirschbeck, Dudek to help adjudicate and advise the Residential Committee and Board in the event the dispute devolves into true litigation. A new rule was recently crafted and made official, in conjunction with our legal advisers, to insulate owners from unforeseen legal costs.

Let's examine each separate sentence in some detail.  You know this was aimed at me.  I know why. Here's the truth underlying these odd sentences:

The first sentence:  

• In a previous correspondence, you were informed that there may be a special assessment later this year for legal expenses resulting from the challenges of an owner with respect to their dog causing bodily harm to another owner/resident. 

 Our complaint against the Board President, the Board, and the Residential Committee is about  their lying, intentional abuse of process, and intentional harassment of my wife and me.  It has nothing to do with our pet.  This is nothing more than an effort to misdirect you into believing we are the ones who have done something wrong. What do you call intentional misdirection by your elected leaders?  I suppose for political leaders, we'd call it routine. But for self-governance in a large condo, where your lies and intentional wrongdoing are committed against your neighbors?  There I would say it is completely unacceptable and those who do it should resign. They are unfit to serve.

There has never been a Board or Residential Committee finding or determination that our pet did anything wrong.  The Board President was so eager to harass me when he saw the chance that he issued a letter assessing the fine saying that there was a complaint on file (a lie), saying there had been an investigation (a lie) and saying there were findings made (another lie).  The fine is automatically enforceable as a matter of law and intentionally lying to create such a lien is illegal (and perhaps worse--it may be a crime.)  No wonder this thug does not wish to talk about the problem he created with his intentional deceit and Rule breaking.  It might be admitting that he had committed a crime. So the deception and misdirection must continue. (Actually no.  The Board could have realized its mistake and rescinded the misguided January 16th letter and that would have been the end of it. Tell me again why the Board dug in its heels to fight to the bitter end to defend their right to disregard the Rules.)

 The threatened "special assessment" is a scare tactic and the Board knows it.The Association pays a premium of $2,355 per year for what is called Director and Officer Errors and Omissions Insurance (D&O insurance).  The amount of insurance is $2,000,000.00.  This insurance pays legal expenses and damages for which the Board and Residential Committee are liable under the law UNLESS their actions have been found to be "deliberately dishonest, malicious or fraudulent or a willful violation of the law."  The deductible under the policy is only $2,500.  

Oh, wait.  You mean the insurance might not cover what the Board President and his cronies actually did because it was fraudulent, malicious, and dishonest?  Oh, okay, then is a special assessment going to work?  No, not in my opinion, as discussed in an earlier blog. The Bylaws will not let the Association pay for damages caused by Association Officers acting outside the Rules, the Bylaws, and State law, as they did in this case. So, what do you do when you are up a creek without a paddle?  Blame someone; anyone else.  Does that really solve the problem?  No but it makes you look less stupid for forgetting your paddle, maybe.

The second sentence:  

• The Board has retained the law firm White (sic), Hirschbeck (sic), Dudek to help adjudicate and advise the Residential Committee and Board in the event the dispute devolves into true litigation. 

If this lawyer was truly hired to be litigation defense counsel, then why did the Association's D & O insurance carrier not even know she was engaged? And what litigation are they talking about?  We have never threatened to sue. That is what the Board President keeps talking about but he's just making that up. 

You will have to ask the Board why they had to hire a lawyer without talking to the insurance company.  One thing is sure, though.  The Board members who caused all this trouble by their bad acts aren't going to pay the Whyte Hirschboeck Dudek bill.  In the crazy POR world that these thugs have created, it is perfectly normal for us to have a Board that breaks its own Rules, lies, harasses Residents for no known reason, assesses a fine in violation of State law; and then expects the Residents they represent as fiduciaries under the law to pay the legal costs of digging them out of the mess they created by themselves.  I think this picture is sordid and we can do much better governing ourselves than this.  All we need is a little less apathy and some brave, bold, decent folks to step forward with me and say:  Enough. We deserve better.

The third sentence:  

• A new rule was recently crafted and made official, in conjunction with our legal advisers, to insulate owners from unforeseen legal costs.

 This will be covered in the next blog. It is an amazing story.

#worstcondoHOApresidentever