Mediation - HOA refused to attend, lack transparency!!

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 19^th 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.