At the January 2010 regular meeting of the Todd Creek Farms Board of directors I made the allegation that the Board had held an illegal executive session after the August 2008 meeting. The Board denied holding such a meeting. Even after I mentioned that I had an audio recording of the meeting they continued to deny holding this executive session. In the process of trying to explain how I must be mistaken Paula inadvertently mentioned that they had held an “informational meeting” the night before the August meeting. I say inadvertently because if she would have thought it through she never would have admitted holding this secret meeting, more on the use of informational meetings later. I have written about this before on this blog and have provided full audio recordings of both meetings.
My purpose for bringing this up in January was to simply point out the deficiency of the minutes of this Board and suggest we use audio recordings to supplement the minutes, little did I know the degree of corruption and the level this Board would stoop to cover up a simple mistake, or was it a simple mistake? Before the January meeting I had sent a link of my article to Jim who in turn shared it with each of the board members, they had a week to research my allegations. I fully expected them to come to the January meeting and simply say they had gone back in their files, found the minutes of the executive session (required by law) admit they had made an error in the August minutes, amend those minutes and move on. At this point I was still assuming that they were simply incompetent, that they didn’t understand the law, or had never bothered to read it. Then the minutes of the January meeting came out and all that was said of the exchange was:
Mr. Mayer addressed the Board with his concerns regarding an executive session that the Board was to have held in August. The Board responded that the date that was in question was a Saturday and the Board did not meet at that time There was however, a meeting by the Board after the announcement of the resignation of the then Board President to educate themselves on issues before the Board that had been headed by the previous president. The other item Mr. Mayer discussed was the procedure of how the election results should have been announced at the Annual Meeting. The Board acknowledged that the chair should have announced the election results and not the manager. Mr. Mayer expressed concern that there was no way to track the historical evolution of resolutions.
So let’s break this down.
Mr. Mayer addressed the Board with his concerns regarding an executive session that the Board was to have held in August. The Board responded that the date that was in question was a Saturday and the Board did not meet at that time
Now I made some rather serious accusations and this is all that is in the official record? Jim uses the rather odd phrase “was to have held” what does that mean? They had the executive session, I have a recording of them announcing it. Paul brought up the fact that I had made a typographical error on my blog, and that is their official response? They broke state law and a typo somehow nullifies it? This is the second time Paul has used this tactic to counter one of my criticisms; he finds a minor point and uses it to divert the discussion in another direction. It is a cheap trick, maybe he has found it effective in the past but it certainly shouldn’t be used in the official record. What this does however, is set up the victim (me) to be marginalized in the future; the Board has admitted no wrong doing and has made me look as though my charges were baseless, so baseless that I didn’t even have the date of the meeting correct. But I have proof in the form of an audio recording.
Now to the second section:
There was however, a meeting by the Board after the announcement of the resignation of the then Board President to educate themselves on issues before the Board that had been headed by the previous president.
This seemed a good explanation to the board at the time I guess, I mentioned in our exchange at the January meeting that holding a meeting the night before the scheduled meeting should be classified as a special meeting, minutes should be taken and posted and filed. They were adamant that they have the right to hold educational meetings, they indeed do have that right, however, the subject matter of the educational meeting has to be general and pertain to Colorado law, not a local issue, following is the applicable statute:
38-33.3-209.6. Executive board member education.
The board may authorize, and account for as a common expense, reimbursement of board members for their actual and necessary expenses incurred in attending educational meetings and seminars on responsible governance of unit owners' associations. The course content of such educational meetings and seminars shall be specific to Colorado, and shall make reference to applicable sections of this article
As you can see, discussing Association business is not allowed in an educational meeting. Even if they had held a legitimate informational or educational meeting minutes should have been posted as they were in January 2008. It was now becoming more and more clear they were engaged in covering something up at this point. I stayed away from the next meeting to see if they would finish the white wash and was not disappointed. Right on cue they amended the August 2009 minutes in February with a brief “Tim moved to accept the corrected August 18, 2009 minutes. Paul seconded. Motion passed”. No mention of what was changed. Following is the change that was made to the August minutes.
The Board agreed by consensus to meet in executive session for the purpose of discussing information provided to the board by the attorney regarding the Counties remarks on the maintenance of the right-of- way along Yosemite. There were no decisions made by the Board during or after the conclusion of this session
There is no indication that this was inserted in the minutes, there is no date of a revision, nothing. Now of course the Board will simply say “this is the way we always do it!” or they will feign incompetence once again, but anyone that knows anything about document control would never let this stand. To complicate matters further many of the “last updated” dates on the Association’s web site, mostly minutes from the last two years, now have the same date. As an aside, the reasons given above for holding a legal executive session are marginal at best. The board has held many open meeting where the attorney’s and the counties remarks have been recited. There is also no reason for the last sentence, it is against the law to make a decision in executive session, this is just classic back pedaling and covering one’s behind.
It is my contention that this is all very purposeful, if this were to go to court they would simply say that I’m some crazy guy that can’t even get my dates right, they will further contend that the August minutes clearly show that they did everything properly. If the fact that there was a revision approved in February were brought up they could just play dumb and somehow not remember what change was made or simply point to some other item. The cover up is now complete. But remember none of this would have happened if I had not recorded these meetings, the matter would have been dropped in January, it would have been my word against theirs.
Why Is This Important
The reason this is important is deeper than just the injustice of an elected board going to these levels to silence a legitimate complaint from one of their citizens. On a more practical level Ms Ganzhorn, or the people that have houses that back to Yosemite will eventually take this Board to court over the maintenance of the right of way, when that happens this Board has now admitted to have held two illegal meetings regarding the subject they are in court for. The obvious question will be how many other illegal meetings did they hold? Of course at that point it won’t matter if they say they only held the two, no one will believe them since they went to the extents they did to cover them up. The judge will ask for minutes, there are none. If there had been minutes taken they could have found them in the week I gave them to do research before the January meeting. After locating the minutes in their files they would have realized they had indeed held the session, and simply admitted a minor clerical error. So we have one completely secret meeting and an executive session with no minutes, (they have now admitted to both in their official documents) the lawyers will eat them up.
So now no matter how legitimate their claims and arguments, they will likely lose the case because of these secret meetings and the Association will pay for the loss, all because of ineptitude and arrogance.
What Can Be Done
Currently there is really no agency to report abuse by boards of homeowners associations, but help is on the way, sort of. Currently House Bill 1278 is making its way through the Colorado legislature, this bill will establish a state ombudsman for HOAs, in the senate version the name was changed to Information Office but the role is the same. This office will still have limited power, it will be used primarily as a clearing house to distribute information to homeowners as to agencies that can help with their complaints, but there are really very few agencies available, this is just a first step. Probably the most important mission of this office will be to catalog complaints and report to the legislature the frequency and nature of those complaints, presumably so future legislation can be written to limit the power of these boards.
This is a similar path that Nevada took a decade ago, since then they have put some real teeth in their law, board members can be removed by a 5 member panel, it is a felony to tamper with elections, and audio recordings of all meetings are required, homeowners also must be allowed to make their own recordings. But it has taken a decade for the legislature to regain control of out of control HOA boards in Nevada, I see no reason to think it will take less time in Colorado. I asked Representative Ryden to include the audio recording aspect in the bill but it had already made its way too far into the process and she didn’t want to tamper with the progress it was making, a wise move, but it shows how slowly this will likely progress. So, heavily document any interaction you have with this board including audio recordings, at some point in the near future you will have someone to take them to.
Just because we have to wait for the congress to get control of the situation doesn’t mean we can’t make changes to our bylaws and get ahead of the curve, it seems only a matter of time before those changes will have to be made anyway. I would suggest we start now, a simple change would be the audio recording of meetings, this can be done with a majority vote of the Board to change the Conduct of Meeting resolution, however it eventually should be changed in the bylaws so future boards can’t override it, but that can wait until November when we have a quorum. Open government is necessary for good government.