Mediation
– List of Complaints, Violations, and Misconduct by the Board Members,
Management Company and attorneys from Vial Fotheringham
Complaints
in chronological order from present to past…
May
14, 2016
ISSUE ONE:
Received post card “NOTICE OF UPCOMING
EVENTS” that informed homeowners that “The May 17, 2016 Annual meeting is
canceled. This year’s Annual meeting will be held on Tuesday, July 19th
at 7 p.m.”
ISSUE TWO:
On the same post card, the June Board
Meeting “…will immediately move into an executive session…”
FACTS ONE:
Oak Knoll Homeowners Association Bylaws
ARTICLE II - MEETINGS
4. Annual Meetings. The annual meetings
of the Association [SHALL] be held in the months of [MAY OR JUNE] at such hour
and on such date as the president may designate, or if the president should
fail to designate such date by the first of May, then on the last Tuesday in
June. The annual meetings shall be for the purpose of electing directors and
for the transaction of such other business as may properly come before the
meeting. [EMPHASIS MINE]
FACT TWO:
ORS 94.640 (8) (a) All meetings of the
board of directors of the association [SHALL] be open to owners, except that at
the discretion of the board, the board may close the meeting to owners other
than board members and meet in executive session to:
(A) Consult with legal counsel
(B) Consider the following:
(i) Personnel
matters, including salary negotiations and employee discipline;
(ii)
Negotiation of contracts with third parties; or
(iii)
Collection of unpaid assessments.
(8)(b) Except in the case of an
emergency, the board of directors of an association [SHALL] vote in an [OPEN
MEETING] whether to meeting in executive session. If the board of directors
votes to meeting in executive session, the presiding officer of the board of
directors [SHALL] state the general nature of the action to be considered and,
as precisely as possible, when and under what circumstances the deliberations
can be disclosed to owners. The statement, motion or decisions to meeting in
executive session must be included in the minutes of the meeting. [EMPHASIS
MINE]
(9) The meeting and notice requirements
in subsection (8) … of this section [MAY NOT] be circumvented by chance or
social meetings [OR] by any other means.
COMPLAINT:
The Board of Directors violated the
above Bylaw in cancelling and moving the Annual Meeting to a date and time
other than [MAY OR JUNE]; and ORS 94.640 (8)(a), (8)(b), and (9) in closing the
Annual Meeting before it began by circumventing the meeting process with a mere
postcard. In addition to, the homeowners were notified that the June Board
Meeting would immediately move into an executive session without following the
prescribed method for doing so under state statute (cited above) and the Robert
Rules of Order.
INQUIRY ONE:
Why did the Board of Directors violate a
clear provision of the Bylaws and Statutory law (cited above) in regards to
cancelling and postponing the Annual Meeting to a month outside the prescribed
two months clearly demarcated within the Bylaws, thus denying homeowners the
right to be attend the normally scheduled Annual Meeting?
INQUIRY TWO:
Why did the Board of Directors violate a
clear provision of the Oregon Planned Community Act (ORS 94.640 (8)(a), (8)(b),
and (9)) by informing the homeowners that the June meeting that would normally
start at 7:00 p.m., “…will immediately move into an executive session…” without
FIRST convening the meeting as required under the Bylaws and state statute with
the presiding board member making a motion to move into executive session and
disclosing the general nature of the action to be considered?
April
19, 2016
ISSUE THREE:
The monthly Board of Directors Meeting
was arbitrarily cancelled by the Board and the suggestion of Patricia Kwok,
representative of the Management Company, on the advice that the Board needs to
have an executive session to meeting with legal counsel.
The Board did [NOT] go into an executive
session to meet with legal counsel at this time, the meeting was just,
cancelled. Why? The board did not like the fact that I had a digital voice
recorder to record the meeting. Patricia Kwok asked the Board to make a motion
to vote whether to not to allow me to record the meeting. I advised the Board
and Patricia that they cannot do that, that state law gives me the right to
record a public meeting. She retorted that the Robert Rules of Order allow the
Board to make such a motion to vote on. I replied they do not, that the Robert
Rules of Order are merely a guide for the Board in how to professionally
conduct a meeting. Failing to cite any presiding authority to overrule state
law, the Board cancelled the meeting and walked away, ignoring the other
homeowners present, thus denying those homeowners the right to participate in
this meeting.
FACT
ONE:
ORS
94.640 (8) (a) All meetings of the board of directors of the association
[SHALL] be open to owners, except that at the discretion of the board, the
board may close the meeting to owners other than board members and meet in
executive session to:
(A)
Consult with legal counsel
(B)
Consider the following:
(i)
Personnel matters, including salary negotiations and employee discipline;
(ii)
Negotiation of contracts with third parties; or
(iii)
Collection of unpaid assessments.
(8)(b)
Except in the case of an emergency, the board of directors of an association
[SHALL] vote in an [OPEN MEETING] whether to meeting in executive session. If
the board of directors votes to meeting in executive session, the presiding
officer of the board of directors [SHALL] state the general nature of the
action to be considered and, as precisely as possible, when and under what
circumstances the deliberations can be disclosed to owners. The statement,
motion or decisions to meeting in executive session must be included in the
minutes of the meeting. [EMPHASIS MINE]
(9)
The meeting and notice requirements in subsection (8) … of this section [MAY
NOT] be circumvented by chance or social meetings [OR] by any other means.
FACT
TWO:
ORS
165.540 (6): The prohibitions in subsection (1)(c) of this section do not apply
to persons who intercept or attempt to intercept with an unconcealed recording
device the oral communications that are part of any of the following
proceedings:
(a)
Public or semipublic meetings such as hearings before governmental or
quasi-governmental bodies, trials, press conferences, public speeches, rallies
and sportings or other events; (c) Private meetings or conferences if all
others involved knew or reasonably should have known that the recording was
being made.
COMPLAINT:
The
Board of Directors, what few present, under the advice of the management company
representative arbitrarily cancelled the April 19, 2016 Board Meeting in direct
contravention of state law (cited above) and the Robert Rules of Order (the
Association Bylaws have no provision for cancelling properly scheduled Board
Meetings), thereby denying the homeowners present to be at said meeting and
participate.
INQUIRY:
What
made the Board of Directors, let alone the management company representative of
a professional organization that assists Homeowner Associations in the conduct
of performing the duties of the Board of Directors, think or believe that they
had a right to (1) vote on a motion to restrict a right granted/provided for under
state statute of a homeowner to make an audio recording of the public meeting;
and (2), arbitrarily cancelling a Board Meeting without properly voting to move
into an executive meeting, thereby officially closing the meeting to Board
members only; yet did not, and by doing so they denied the present homeowners right
to be there and participate at the Board Meeting?
January 19, 2016
ISSUE
FOUR:
Records
Examinations Resolution motioned, voted, approved and signed by President
Tony Roos and Secretary (signature illegible) on January 19, 2016.
Recital
D. does [NOT] correctly provide the citation of authority under the Bylaws. It
merely states the following:
“Pursuant
to Article III, Section 3 of the Bylaws, the Association’s Board of Directors
(“Board”) has all the powers and duties necessary for the administration of the
affairs of the Association….”
Without
citing the proper subsection of authority, this recital is vague and
unreasonable.
Recital
G. states as follows:
“Article
VI, Section 1 of the Bylaws requires the Board and the manager, if any, to keep
detailed records of the actions of the Board, minutes of the meetings of the
Board, minutes of the meetings of the Association, and a list of members
entitled to vote at meetings of the Association and a list of all mortgages of Lots.”
The
Board of Directors of the Oak Knoll Homeowners Association has failed
to “keep detailed records of the actions of the Board…” as admitted by first,
second and now third Management Company employed by the Board of Directors. I
know this as a matter of FACT because the representative of Superior Community
Management informed me that they never received any records from the previous
management company.
I
have also learned through another homeowner who has kept detailed records of
their business with the Board of Directors of the Oak Knoll Homeowners
Association, that the new management company, likewise, does not possess the
necessary records concerning their case from the previous management company.
As such, the Board of Directors has FAILED to maintain and “keep detailed records
of the actions of the Board, minutes of the meetings of the Board, minutes of
the meetings of the Association….’
FACT
ONE:
ARTICLE
VI – RECORDS AND AUDITS
1. General Records. The Board of Directors
and the managing agent or manger, if any, [SHALL] keep detailed, accurate
records of the actions of the Board of Directors and the managing agent or
manager, minutes or the meetings of the Board of Directors and minutes of the
meetings of the Association….
2. Records of Receipts and Expenditures.
The Board of Directors or its designee [SHALL] keep detailed, accurate records,
in chronological order, of the receipts and expenditures affecting the common
areas, itemizing the maintenance and repair expenses of the common areas and
any other expenses incurred. Such records and the vouchers authorizing the
payment [SHALL] be available for examination by the Members and their
mortgagees at convenient hours of weekdays.
5. Records and Audits. …From time to time
the Board of Directors, at the expense of the Association, may obtain an audit
of the books and records pertaining to the Association and furnish copies
thereof to the owners and such mortgagees.
FACT
TWO:
ORS
94.670 Association duty to keep documents and records; deposit of assessments;
payment of association expenses; review of financial statement by certified
public accountant; examination of records by owner.
(1)
A homeowners association [SHALL] retain within this state the documents,
information and records delivered to the association under ORS 94.616 and all
other records of the association for not les that the period specified for the
record in ORS 65.771 or any other applicable law… (i.e. records retention).
(9)(a)
Except as provided in paragraph (b) of this subsection, the association [SHALL]
make the documents, information and records described in subsections (1) and
(4) of this section and all other records of the association reasonably
available for examination and, upon written request, available for duplication
by an owner and any mortgagee of a lot that makes the request in good faith for
a proper purpose.
COMPLAINT:
The
Oak Knoll Homeowners Association via the Board of Directors has FAILED to
adhere to the Bylaws and statutory law where maintaining the records of the
Association are concerned.
From
the initial creation/turnover of the Association from the Declarant to the
homeowners under the first to present Board of Directors, it has been an
apparent failure of the Board of Directors, and likewise the management company
and law firm, Vial Fotheringham, to maintain accurate and complete records of
the Oak Knoll Homeowners Association
This
failure to keep and maintain accurate documents and records of the association
has caused a lot of financial difficulties for homeowners unduly and unjustly assessed
fees for violations, etc. with no accountability on the part of the Board of
Directors to bear the burden of proof of said charges against the homeowner
levied a fine/fee against.
Now
the Board of Directors wants to make it even more difficult, at the expense of
the homeowner, to request review of records that they are entitled to. Hence,
they are implementing a high level of NO transparency of the Homeowners
Association and the dealings and business conducted by the Board of Directors.
INQUIRY:
How
does the Board of Directors justify this resolution that is improperly written
(i.e. the citation of authorizes is inaccurate), and what is it that the Board
of Directors is intent on hiding from the Members of the Association by making
it (financially) difficult for a homeowner the legal right to review the
records of the Association?
January 20, 2016
ISSUE
FIVE:
Street Trees
Maintenance Resolution motioned, voted, approved and signed by President
Tony Roos on January 19, 2016, and the Secretary of the Board of Directors
(signature illegible) on January 20, 2016.
The
Board of Directors knew for years that they have been wantonly misinterpreting
the CC&Rs regarding the common improvements of the Association,
specifically where the street trees are concerned.
Section
7.1 of the CC&Rs clearly states as follows:
“Oak
Knoll has or will have certain improvements which are for the benefit of all
Lots. These improvements include: Sign monuments to be installed on Lot 29, Oak
Knoll; traffic circle at intersection of Foothills Drive and Center Street;
planter strips along Foothills Drive; [AND STREET TREES ON EACH LOT]. In
addition, Declarant and Adjoining Owners may dedicate common areas to the
Association for the use of all Owners. All of the common areas and improvements
are collectively called “Common Improvements.””
Since
the inception of the HOA/Board of Directors in 1999, the Board of Directors
misconstrued the above cited CC&R 7.1 the way they wanted it to read and
not for what it actually states. The Board of Directors past to present have
purposely misinterpreted the CC&Rs and chose to maintain, repair and/or
replace street trees ONLY along
Foothills Drive. All homeowner were assessed for this rather than just those
living on Foothills Drive, who were the specific beneficiaries of this incorrect
interpretation of the CC&Rs.
In
October 2014, this matter came before a Town Hall meeting with several
homeowners present voicing their concern that the Board has been
misinterpreting the CC&Rs and funding an item that does NOT benefit all
Lots, but rather only those Lots on Foothills Drive while everyone else has to
take care of their own street trees. Emails and phone calls poured in, as
admitted by President Tony Roos. In the November 2014 Newsletter, President
Tony Roos made it perfectly clear that it was decided that with the approval of
the 2015 budget going forward, that the street trees along Foothills Drive
would be the owners responsibility, not the HOA’s.
A
little more than a year later, we not have the Street Trees Maintenance
resolution that basically puts the street trees ONLY on Foothills Drive back
into the HOA budget as a common improvement in direct contravention to the
Bylaws, CC&Rs, state law AND a [FINAL DECISION] handed down by the 2014
Board of Directors and attested to by the President in a November 2014
Newsletter that this issue was put to rest. In short, the President, Tony Roos,
patently lied and breached his fiduciary duty to the homeowners by signing this
illicit resolution.
The
Board of Directors for years have known of their error in misinterpreting the
CC&Rs, and in order to correct their historical error they commissioned the
assistance of the law firm Vial Fotheringham to prepare an amendment to the
CC&Rs to essential rescind the part of CC&R 7.1 that states “…and
street trees on each Lot…” to read, “…street trees along Foothills Drive.” That
attempt failed at the September 20, 2011, meeting. During this meeting, the
President, Tony Roos, admitted that their interpretation of the CC&Rs was
patently incorrect and acknowledged that the CC&Rs Section 7.1 clearly
stipulates all trees on all Lots are common improvements of the Association.
The
FACT that the Board of Directors knows full well what Section 7.1 demarcates
regarding all trees on each Lot being a common improvement of the association,
and tried to make an amendment to the CC&Rs and 2011 to change it to what
they clearly misinterpreted to justify their gross historical error being
repeated on an annual basis, that the Street Trees Maintenance Resolution
signed in January 2016 was a direct mean to an end to circumvent the Bylaws,
CC&Rs and statutory law regarding the requirement of an amendment to fundamentally
change the terms and language of Section 7,1 of the CC&Rs where the street
trees along Foothills Drive alone, and not all street trees on each Lot was
concerned.
The
Street Trees Maintenance Resolution is prima facie unenforceable as it violates
the Bylaws, CC&Rs and statutory law. Nevertheless, the Board of Directors
have communicated that they do not care and will enforce it just the same.
FACT
ONE:
CC&Rs
Section 9 – AMENDMENTS OR MODIFICATIONS
9.2
- This Declaration may be amended or modified by an instrument by not less than
seventy-five (75%) percent of the then Owners of Lots in Oak Knoll…”
CC&Rs
Section 12 – OTHER PROVISONS
12.6.2
– Consent Required. Except upon the approval of Mortgagees holding Mortgages of
Lots which have at least seventy-five (75%) of the votes of Lots which are
subject to Mortgages, [NO AMENDMENT MAY BE MADE TO THIS DECLARATION WHICH ADD
TO OR AMEND ANY MATERIAL PROVISONS OF THE DELARATION…] ------ [EMPHASIS MINE]
FACT
TWO:
ORS
94.590 Amendment of declaration by
owners.
(1)(a)
The declaration may be amended [ONLY WITH THE APPROVAL OF OWNERS REPRESENTING
AT LEAST 75 PERCENT] of the total votes in the planned community or any larger
percentage specified in the declaration.
ORS
94.704 Assessment and payment of common
expenses.
Subsection
(6) "Unless otherwise provided in the declaration or bylaws, any common
expense or any part of a common expense benefiting fewer than all of the lots
may be assessed exclusively against the lots or units benefited."
FACT
THREE:
Bylaws
– Article V: Budget, Expenses and Assessments
“Expenses
and assessments [SHALL] be charged, assessed and collected [IN ACCORDANCE WITH
THE DECLARATION].
FACT
FOUR:
Bylaws
Article III, Section (3)(g), clearly states the following:
“Adoption
in according with these Bylaws of reasonable administrative rules and
regulations for use of the common areas.”
COMPLAINT:
The
Street Trees Maintenance Resolution is in direct contravention of the Bylaws,
CC&Rs and statutory law (cited above), that which fundamentally changes the
terms, definitions, and intended purpose
of the CC&Rs as they are clearly written whereas Section 7.1 is concerned.
Moreover,
given the FACT that this matter was resolved in October 2014 and solidified by
President Tony Roos in the November 2014 Newsletter affirming that the street
trees on Foothills Drive alone would no longer be a part of the HOA reserve
budget of common improvements; the Board of Directors breached their fiduciary
duties in asking for and signing off on said resolution that contradicts the
above referenced FACTS!
INQUIRY:
I
want the Board of Directors, Management Company and the attorney(s) of Vial
Fotheringham to explain and account for
this illicit Street Trees Maintenance Resolution that is patently unenforceable
since it does not conform to/with the Bylaws, CC&Rs and statutory law where
there is a required 75% vote of the
homeowners needed in order to pass such a resolution that is clearly intended
to be an amendment to the CC&Rs, which the Board of Directors, Management
Company and attorney(s) of Vial Fotheringham know is required.
January 20, 2016
ISSUE
SIX:
Garbage Cans
Resolution
motioned, voted, approved and signed by President Tony Roos on January 19,
2016, and the Secretary of the Board of Directors (signature illegible) on
January 20, 2016.
FACT
ONE:
The
premise substantiating this resolution via its citation of authorities, Recital
F, states as follows:
“Under
ORS 94.630 (1)(a) and Article III, Section (3)(g) of the Bylaws, the Board, on
behalf of the Association, may adopt, modify, or revoke rules and regulations
for Oak Knoll governing the conduct of persons and the use of the common areas,
as it may deem necessary or appropriate in order to assure the peaceful and
orderly use and enjoyment of Oak Knoll.”
Bylaws
Article III, Section (3)(g), clearly states the following:
“Adoption
in according with these Bylaws of reasonable administrative rules and
regulations for use of the common areas.”
FACT
TWO:
Bylaws
– Article V: Budget, Expenses and Assessments
“Expenses
and assessments [SHALL] be charged, assessed and collected [IN ACCORDANCE WITH
THE DECLARATION].
COMPLAINT:
CC&R
Section 7.1 FAILS to identify the “garbage cans” as a “common area(s)” or
“common improvement” of the Oak Knoll Homeowners Association.
This
resolution is neither “reasonable” nor is it a matter of “peaceful and orderly
use and enjoyment of Oak Knoll”; as such, it is patently unenforceable.
INQUIRY:
I
want the Board of Directors, Management Company and the attorney(s) of Vial
Fotheringham to explain and account for this illicit Garbage Can Resolution
that is patently unenforceable since it does not conform to/with the Bylaws.
ADDITIONAL
ISSUES:
There
are additional historical issues…that should be called into questioned since
there was a management company and law firm involved, that could and should
have provided accurate guidance to the Board of Directors, but clearly failed
to do.
Examples
include but are not limited to the following:
Lack
of an annually funded reserve account (required by state statute, and cannot be
defunded per state statue)
Lack
of an annual reserve study (required by state statute)
Lack
of an annual maintenance plan (required by state statute)
Breach of
fiduciary duties of Board Members…
For
example, Linda Hanson, lives on corner of Foothills Drive and Meridian,
personally benefited from the long standing inaccurate interpretation of
CC&R 7.1 to maintain, repair and/or replace the street trees along
Foothills Drive. Moreover, she kept her garbage cans on the side of her house
in plain view of the street; meanwhile while being on the board holding other
homeowners to the CC&R that forbids garbage cans being viewed from the
street while in storage.
President
Tony Roos has committed then same violation of the CC&Rs regarding garbage
cans being viewed from the street on non-garbage days before the allowed
24-hour period and after collection day.
Funds
from the reserve account were embezzled/stolen unbeknownst to the homeowners,
loosely mentioned at a board meeting, but never specifically told to ALL
homeowners.
Money
Market accounts have been in place for years, earning a profit, and according
to the CC&Rs, Section 2.2.4 “All common profits of the Association [SHALL]
be allocated equally to each Owner. To this day no Owner has seen such a
“profit.” In fact, based on the vague financials of the association, the Money
Market account(s) balance has been reduced with no accounting for where it went
to (i.e expenditure).
I
can go on and on and on and on all the way back to 1999 when the first Board
was voted in and put in place, but I believe I have made my point crystal
clear.
The
point being, that the Board of Directors, encouraged or endorsed by three inept
Management Companies, and the attorney(s) of Vial Fotheringham wantonly facilitated
the above cited violations of the Bylaws, CC&Rs and statutory law under the
Oregon Planned Community Act.
--- UPDATE: The Board of Directors, after executive session with an attorney, voted not to attend mediation to answer to the above complaints.
--- UPDATE: The Board of Directors, after executive session with an attorney, voted not to attend mediation to answer to the above complaints.
