HARVEY A. KURTZ ESQ.
106 WEST SEEBOTH
STREET UNIT 812
MILWAUKEE, WI 53204
July 16, 2015
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Laura Windpassinger, Property Manager
Prospect Management LLC
5645 N. Green Bay Avenue
Milwaukee, WI 53209-4437
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Re: July 19,
2015, Hearing
Dear Ms. Windpassinger:
This will advise you that I will not attend the hearing
scheduled for 10:00 a.m. on Sunday, July 19, 2015, in the Board Room. My reasons for not attending are two:
First, the initial notice of fine assessment issued
by the POR Residential Committee is not in compliance with the applicable rules
in so many significant ways that it cannot be considered a valid notice of fine
assessment under our Rules and that makes appealing it a pointless exercise. The
initial assessment of a fine by the Committee or Board is required to state the
Rules alleged to have been violated and this one does not. The initial assessment is required to
describe in full the substantial evidence of Rule violation on which it is
based and this one does not. The initial
assessment is required to be issued in accordance with the Bylaws and this one
was not. The Board and Residential Committees are prohibited from
discriminating in the administration of the Rules and in this case there is
flagrant discrimination in favor of a third participant and his pet who were
fully involved in the same incident.
Second, the “appeal hearing” is rendered totally meaningless
because I have received absolutely no evidence pertaining to the alleged
violation of an unknown Rule. I presume that
“evidence” will magically appear at the hearing; I will have not seen it
before; the rules adopted for the hearing specifically do not allow me to ask
any questions; so, bang the gavel, my appeal is over, and I lose. Well, it
might happen that way but I won’t be there to suffer through it.
The fact that I have received no evidence of any kind, to
review, much less the “substantial evidence” required by the Rules is
astonishing. It is also the same thing
that happened in the last fake fine assessment they tried using to harass me
last January. There was no evidence then, either, at least none was provided to
me before the scheduled hearing date.
Even the rules that Mr. Rasmussen has imposed on this
hearing to help him be sure he wins (i.e., the “Loudermill rules,” which are
clearly explained on Wikipedia) specifically state the following:
In advance of a Loudermill rules hearing, the employee must be given a Loudermill
letter–i.e. specific written notice of the charges and an explanation of
the evidence so that the employee can provide a meaningful response and an
opportunity to correct factual mistakes in the investigation and to address the
type of discipline being considered.
In summary, I deny the validity of the May 11, 2015, notice
of fine assessment on the grounds that it does not meet the standards clearly
set out in Association Rules and is, therefore, invalid from the beginning.
I deny the validity of the so-called appeal hearing because
it does not provide me full Due Process rights and no evidence has been
provided to me for review prior to the scheduled hearing date.
As a result of the defective initial fine assessment and the
failure of the appeal hearing process to protect my Due Process rights I have
determined that attending the appeal hearing on Sunday, January 19, 2015, in
the Board Room is not in the best interest of me or my family. The next section makes us heartsick but we
have no choice but to pursue relief from this torture as fully and completely
as is humanly possible, starting with these demands:
Demands
The chronic, illegal, intentional harassment of my wife and me
has been continuous now for over six months.
We are finished waiting for it to stop.
With this letter we are making our demands to bring this illegal
behavior by Poul David Rasmussen and his cronies on the Association’s
Residential Committee and Board of Directors to an end. Our demands are as follows:
1. The ongoing intentional harassment of myself and
my wife, clearly intended to drive us out of the quiet enjoyment of our home at
the Point on the River, shall cease and desist immediately.
2. Poul
David Rasmussen and Jerry Biggart shall resign their offices in the Condo
Association government not later than 11:00 am on the morning of July 19,
2015.
3. Damages to us in the amount of $500,000 for the
harm already done to us shall be paid not later than July 31, 2015. We will demand additional damages if we are
forced to sell our home and move out of the Point on the River in order to
obtain relief from the emotional distress being intentionally inflicted upon us
by the officers of the Point on the River Condo Association. Those damages will
include sales commission; the difference in price paid and fair market value if
we must sell at less than cost to escape this hostile environment. Any
cleaning, moving, and storage costs incurred.
4. Punitive damages in the amount of $1.0 Million
Dollars shall be paid by July 31, 2015, unless the resignations of Poul David
Rasmussen and Jerry Biggart from all Association positions of trust
(Residential Committee in particular) have been finalized by that date.
Very truly yours,
Harvey A. Kurtz, Esq.
Exhibit A: Details of Defects in the Initial Fine
Assessment
1. It
does not state the Rule or Rules that Dr. Carbollo and I are accused of
breaking.
2. It
does not state the date as of which the fine must be paid.
3. It
does not set forth the substantial
evidence of the offense giving rise to the fine and no evidence has yet
been provided to me.
4. The
validity of the fine has not been verified.
I must receive written proof that there was a duly called meeting of the
Residential Committee at which the fine was approved; I need to know who was
present; who voted; and how they voted. This information is crucial to any due
process appeal because Jerry Biggart must be disqualified from voting on any
matter that causes me detriment because his past vile behavior including his
public written threat issued to me on the POR discussion group on August 18,
2014.
5. The
fine assessment is required by the Bylaws to have been approved by the Board of
Directors. I have received no proof that
this necessary action has taken place. This is important for two reasons. The first reason is that Jerry Biggart is one
of the Association’s three directors and he must be disqualified from voting on
any matter against me. That only leaves
two eligible directors to have voted on approval of the fine. It is essential to my due process rights that
I know what the Board did, and by whose votes the Board’s action was decided.
The second
reason that the Board’s action in this matter must be fully disclosed is even
more compelling. The act of fining two
pet owners for a “pet incident,” which is what the Residential Committee did,
violates the covenant that all unit holders at the Point have with the
Association, i.e., that the Point on the River is a pet friendly condominium. This covenant cannot be changed by decree of
Poul David Rasmussen or by Rule. It can only be changed by a super majority
vote (two-thirds vote) of all unit holders.
For a due process appeal I need to know what the Board did about the violation
of this covenant by the Residential Committee and how each member voted.
6. The
Residential Committee failed to fine one of the three participants in the
“incident involving pets.” This is
likely a violation of the Rule that prohibits discrimination in the enforcement
of the Rules. I need full disclosure of
all aspects of the investigation of this “incident” in order to address the
question of prohibited discrimination in application of the Rules.
Exhibit B: Details of Defects in the Appeal Hearing
1.
The Loudermill Rules (discussed below) adopted
by Mr. Rasmussen for this hearing state:
In advance of a Loudermill rules
hearing, the employee must be given a Loudermill
letter–i.e. specific written notice of the charges and an explanation of
the evidence so that the employee can provide a meaningful response and an
opportunity to correct factual mistakes in the investigation and to address the
type of discipline being considered.
Our Condo
Rules require the same full disclosure of the evidence and the substantial
basis for the fine. That disclosure is required to be part of the initial fine
assessment. It was never made.
2. The
terms and conditions are rigged against the person appealing so the person
appealing has no realistic hope of prevailing. Here is an example of how the
“rigging” works, courtesy of the “Loudermill Rules”:
At
the hearing challenges to the validity of the Residential Committee’s ability
to issue a violation will be ruled out of order.
This rule is
intended to say is that that challenges to the validity of the initial
violation notice will be ruled out of order.
I have received a totally defective fine assessment but it cannot be
discussed at my appeal hearing. That is not Due Process.
Background
on Loudermill rules: Government
employers won the right to severely limit the due process rights of the
government employee in the first “partial” due process hearing in a case called
Loudermill v. Cleveland
decided by the U. S. Supreme Court. Those restrictive rules providing only
partial due process rights were upheld by the Supreme Court on the basis that
the same government employee was guaranteed by law a full due process hearing
if the employee lost his “employment property” (meaning the employee was
ultimately terminated). The rules for
the partial due process hearing have
come to be known as the “Loudermill Rules.” So, our leaders came up with the
idea of using the Loudermill Rules for the appeal hearings under the POR
Association Rules because they were familiar with them and they allowed Poul
David Rasmussen to control every aspect of the appeal hearing (especially the
results). Plus they could be as sloppy issuing fines as they wanted to be and
nobody could challenge them. Yikes.
The problem
with using the Loudermill Rules is that they are rules for a partial due
process hearing and were determined to be constitutional by the Supreme Court
because the affected government employee was already guaranteed by law a full
due process hearing if he or she actually lost their “employment property.”
How is that
different from the situation at the POR and why are the Loudermill Rules
unconstitutional when used in an Association appeal hearing? We unit holders at the Point do not have that
second guaranteed-by-law opportunity for a full due process hearing. We lose our property (the amount of the fine)
immediately upon losing in the appeal hearing.
This means the U. S. constitution requires (since Condo Associations are
treated as governments under the law) that we be afforded full due process
rights in our “final” appeal before the loss of property. If I can’t make the argument that the initial
fine is invalid because it does not comply with the Rules my due process rights
are canceled out and I have no hope of success.
3. The
notice of the hearing describes my alleged Rule violation completely
differently than it is described in the initial notice of assessment. This is an egregious violation of the Rules. It is the clearest possible illustration of
intentional harassment you could possibly ask for. It would be laughable if it was not so
insanely aggressive and frightening that both my wife and I have lost sleep and
suffered significant emotional distress at the thought that our Condo
Association officers are willing to go this far out on a limb simply to harass
us out of our home.
Dr. Carbollo
and I were assessed fines for “an incident involving our pets.”
When I
complained on June 8th about the defects in the initial fine
assessment and complained that it clearly violated the covenant POR unit
holders have under the Bylaws that the POR is “pet friendly” I got no
response. However, someone must have
read and believed my pet-friendly covenant violation discussion.
They changed
the description of my alleged Rule violation in the hearing notice to a dog
bite on April 11, 2015 to the pet of Dr. Carbollo by my dog, Bailey. So the appeal hearing is now for an appeal of
something that never happened. One thing
I absolutely know for sure is that Bailey and Rudy never saw each other on
April 11. Here is where that leaves
me: I don’t have the right to challenge
the initial fine assessment for consistency with the Rules but they have a
right to cover up their carelessness by rewriting a defective initial fine
assessment to suit their whim.
