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| WATCHDOG © 2011 |
Customary Practice is the topic of this post. With little research an individual can ascertain that the laws set out to govern in this country -- including criminal law -- initially looked at customary practice. It is generally accepted, for instance, that the law's foundation for this country has as its underpinnings the Ten Commandments. For those who define their religious tenet from the Judea-Christian faith even the Ten Commandments saw time and circumstance alter the emphatic scripted stone from exact and literal application to adopt and conform to culture or ideology that was far removed from the culture that received the Commandments. The finality for the Christian for instance is the word of their Lord "Two Commandments" was what the law rested on. Over time, 'Thou Shalt not Murder' was defined by 'intent' so there are classes of murder. Customary practices evolved. While there was provision in the Deuteronomic Code for 'intent' or circumstance of murder it was not as evolved as our Legal Code in the US or in the various states and protectorates. As customary practice has been challenged laws and regulations attending the long time practice begin to evolve to accommodate culture as well.
Watchdog presents to you here Customary Practice as known to Watchdog from as early as the deadline for the 2006 nominations.
- Email sent to the directors current in September 2006 notifying the Board nominations for the secretary and the treasurer [then] needed to be made and concurred for 2007 elections. The nominations were made and the concurrence received by email. No questions ever arose as to the legitimacy of this practice.
- Allegations were made via court record this 'customary practice' was done in the alleged nomination of an appointed director for the election of 2008.
As a result of the alleged fiasco written nomination and concurrence were then looked to as an obvious way to thwart the opportunity for someone who contends that an email nomination/concurrence was sent but not received. Thus, the customary practice was adopted or evolved through a change to the bylaw 5.03 to accommodate a formal written notification of both the nominator and the nominee as concurring. Paperwork was in the office if they preferred. Through the 2011 elections, regardless of the informal practices from the past [bylaw 5.03] or the more formal practice of the more recent past [updated bylaw 5.03], it was always the customary practice of the Board of Directors to rely on the Office Staff, in the person of the long time staff whose tenure over arched the many general managers of 20 years, who knew the subdivision and everyone's standing because she accepted payments from the owners, to report to the Board if all were members and in standing. As a matter for consideration here the Bylaw that was used as the premise for the recent motion to deny 5 candidates their rightful place on the ballot for 2012 elections is posted:
Section 5.03. Nomination of Directors. Nominations for Directors shall be made by any Member in good standing by submission in writing with the written concurrence of the nominee to the Association office by September 30 for election the following year
There are specific actions set out in this section. Please note to whom they are set forth.
A.
N OMINATIONS shall be made by any Member in good standing
B. NOMINATIONS shall be submitted in writing
C. Concurrence of the nominee confirmed in writing
D. Submission to be done
a. To the Association office
b. By September 30th.
c. For election the following year
Please note: the words signature and/or verified/verification are absent from the Bylaw.
The idea that the 'Customary Practice' of verification was changed this year with NO NOTICE to the members either by consensus, by motion, is suspect, and here is why. Moments after the submission of candidates the president sitting in an adjacent office actually did what was Customary, she 'asked' for verification of all by the same senior staff member who'd done it for decades. The President in her capacity exercised CUSTOMARY PRACTICE and quite naturally and had the confirmation of the standing of all signatures by the one person who could indeed recognize them all.
Different individuals wrote letters to the Board asking for reconsideration. A motion was made to add the 5 names disqualified to the ballot of 2012. It is unlikely at this point if that was done because the motion made in an open session was voted upon in secret and the Minutes for that meeting may not be approved for dissemination for up to 2 months the entire Membership is hanging in limbo. Why? Because 'Customary Practices' were not adhered openly by the Board of Directors. On Saturday, October 29th, at the first meeting of the Election Committee the election committee was informed that all signatures had been confirmed in the customary way by the senior office staff to the president moments after submission. The chair of the Election Committee seemed surprised at this knowledge. This is the same person who raised a stack of papers at the next Board meeting suggesting that in her hand was a collection of evidence that she believed disqualified the entire 7 nominees they did not want on the ballot because she believed them unworthy to serve the Membership considering the things they had written on the internet. Not one of the 7 nominees had been given an opportunity to read and confirm or deny whether the allegations made against them were true. It was a fist of paper with print on it and her personal statement ON THE RECORD that disqualified them all in her mind. The signatures were only another 'reason'. Personal opinion so forcefully spoken that it caught many by surprise.
The motion was made to disqualify 5 candidates based on signatures not being verifiable or even verified in time to make the deadline; a complete and erroneous statement of fact as well as misapplication of bylaw 5.03 where the verification process is neither required nor referenced. The nominators had to be a member and in good standing...but the nominations and concurrences delivered in writing is all that is required by the bylaw. They were. Everything else is smoke and mirrors in what appears to some as a feeble attempt to cover up a personal agenda of a majority of the Board in subverting a process that has until now served the Membership well notwithstanding the sole exception of the allegations made in the 2008 ballot.
The deadline is fast approaching but it is not too late to do the right thing regardless of one's personal disgust, disenchantment. For the Membership as a whole, abiding by the Customary Practices -- which when all is said and done was in fact PERFORMED EXACTLY as it had been for years and years and years by the staff for every election! No excuse can be given to deny the democratic process going forward for those disenfranchised 5 candidates!
FYI, this has already been addressed in former litigation...the customary practice. It could be an embarrassment for anyone to appear to stand in defiance of something that has already been addressed in deposition and part of the decision process arriving to the agreement that eventually concluded the litigation. Hearkening back to last campaign season and the Board's gracious consideration of the 'confusion' over the first ballot the Board decided to err on the side of caution and took a lot of heat from all sides for doing it. It is history now, but a history that stands in stark contrast to the current stand in similar circumstances. Watchdog respectfully requests this Board let democracy ring.
Candidedly, you are largely to blame for this nominations fiasco: (1)You handed in a form that contained an HSCA letterhead, thereby creating consternation among the BoD.(2) You failed to type your name and lot number under your signature. This gave the BoD the excuse they seized upon to disqualify the nominees.
ReplyDelete(3)You waited until the very last day on the deadline to submit the papers. You couldn't possibly have concocted a better brew for a hassle. I finally was able to view the asst. treasurer's statement re: the nominees on 10 November. (Initials are S.L.) It's very unfortunate: Her claim that they shouldn't be allowed to run because of their published negativity is vague, particularly since she brandished some white papers as evidence of their perfidiousness, but then failed to enter them into the record. I assume that a Code of Conduct complaint has been filed against her. We will be able to see how the BoD polices itself in the matter.
I accede the bottom line of your points, mistakes were made but with this caveat none of them disqualified the candidates not a single one. Would we do it differently again? Hindsight. With a Board that had permitted the President's Report to go out as a veiled campaign piece announcing the candidacy of 3 individuals and the absence of any invitation for any other interested parties to submit by the deadline and with the utter absence of any discussion of the deadline it was late in the game when the light went on and it was discovered it was only going to be those 3 if someone did not step up.
ReplyDeleteAgain, though some mistakes were made nary a single one of them disqualified a single candidate. The candidates were disqualified by a motion and an affirmative vote based on subjective interpretation of bylaw 5.03 that aligns the action taken with a larger agenda which became obvious with the appointment of yet another Papio Street resident.
I am not definitely aware of anyone making a code of conduct violation against the assistant secretary. Even if the Board policed itself correctly, there exists a marginal -interpretation- of the Code that may not meet consensus with the Board. I would assume the false allegations couched in hyperbole that has been perceived as rude would be a premise and if that were the case might be sustained.
I believe the Board should follow their own pleas from last year when they insisted the Board was not being 'fair'. The Board acquiesced to respond as the majority requested despite the misgivings of some and the disillusion of others that the board 'caved'. As I have stated here before, I am glad we did because it demonstrated a willingness to accommodate the differences. It would really be nice to see them do as they demanded of others.
None of the disqualified candidates are deserving of this treatment. They should have had the same opportunity to win/lose a vote.
We shall see what if anything happens.
Yes, the BoD has no legal grounds to disqualify the nominees. If the asst treasurer's criteria of published vitriol is a valid reason to keep members out of the election, none of them would be on the board. The main danger is, if they get away with this flagrant violation of our By-Laws, they will be emboldened and toss out the rule of law entirely.
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteIt is truth; such could be an inducement should this attempt to derail the benevolent intent of the 5 disqualified candidates is a success from the perspective of the motion maker/supporters on Nov. 10. Because everyone is in abeyance -- not knowing the outcome of the motion to add the 5 to the ballot -- valuable time is dissipating.
ReplyDeleteThe situation -- as I see it-- the folks who will have the most persuasive voice will be those who were disqualified as they continue through the process to press for rightful accountability absent those considered the poison well, like myself. With the animus of the historical rivals on either side the true travesty will never receive its due without those who have no history but are incensed their right to vote for any candidate has been censured as it has stepping up and representing themselves as has been done by one group or another over the years. From it there may be some commonality forged with those on the Board who may be reasonably disposed and those who are utterly flabbergasted at the actions of the Board to strike an accord for the best interest of the Membership. It cannot be a 'subjective' view of what is best for the Membership as Rule of Law is essentially the checks to balance out what many may see as an abuse of power.
Some of our neighbors are Fascists. Nobody knew it, including them, until we placed them in power.
ReplyDeleteIt has been my experience in listening to some there is a sense many things this Board has done has met with approval. There is however a deep concern for the direction with regards capital improvements that may deplete the resources carefully planned and earmarked for saving for the past few years leaving the possibility for a huge vulnerability. This could affect the water system should any number of unexpected emergencies arise. It is the growing consensus a temporary moratorium be put on monies spent on capital improvements until the water system is out of the red zone. While the infrastructure capital improvements is budgeted primarily for the water system it is for the PER. As a reminder, HSCA was here at this same place in the process last year at this time. With the complete reset this year by the Board we have another year gone and no closer than we were last year this month in the process of getting the engineering report done. Without that report any upgrade is in limbo. Members I have heard from do not want improvements to anything that will deplete any funding source so much we do not even have a back up for our needs without having to levy some huge special assessment.
ReplyDeleteSince the Board has arbitrarily tied up all the seats for the next few years they need not try and spend and fix across the board until the life sustaining vital water system is shored up.
While there are those who are experiencing many different emotions about the walk on the wrong side regarding the 5 candidates the good will and support that has been building for this Board for some of their projects will likely be lost should yet another revolt evolve. Sadly, this sort of repetitive behavior -- regardless of which Board -- is counter productive to a settled community. There are some extreme options being reviewed right now any one of which could be an answer -- any one of which would forever alter the dynamic of the Association and the schism that is may be resolved despite the efforts of the various contingents.
Regarding Rule of Law, the refusal to adopt the informal 'small board' 'rules' as allowed in the current RONR is being used as a means to kill motions that are not popular; deny discussion by all and now on a whim without notice to recess a meeting during the discussion phase of a MAIN motion with no time or place noticed as to when the recess would be over. The consequence? 5 candidates may not know the outcome of the motion and have lost another month into the campaign with no ability to get their message out. Altogether, 3 candidates were able to use the President's Report to the members in August to announce their candidacy; the nominations were submitted before the deadline; 2 full months have passed by bringing the election that much closer and 5 candidates may still not know their fate.
If all it takes to say no to an aspiring director is for a seated director to hold up a fist of white paper, allude to the paperwork as evidence of something nefarious without providing the accused their own defense or even appeal the allegations, then we have moved swiftly from a community which operates according to the bylaws to one of fanciful notions. Squandering the good will and individual member rights by such actions does not usually end well. It could be assumed the lessons learned the last time were not because those who now sit at the Board tables never accepted or believed the facts. Are we, as they say, doomed to bear the same results venturing down the path well traveled? Or will brilliant new minds and eyes seek redress via uncharted territory?
It only requires a few players that ignore the rules to change the entire nature of the gaem.
ReplyDeleteI suggest -- with all due respect -- the game was changed. The spectators who root for the home team have not held back from fabricating and spinning unsubstantiated yarns in dizzying and unreasoning support of their team. The wild stories have been amusing but at some point after enough rope has been allowed to feed may come back to bite.
ReplyDeleteThe election is in for the fix. The fact is, after orchestrating the election event as they have they can turn around and pat themselves on the back and suggest with all audacity the re-election of 2 current board members will somehow be a mandate by the Members to carry on.
The members who were denied a 'rightful' run for election to the Board have graciously stepped aside so as to not continue the morass that the previous elections have created. While an honorable attitude it will be misconstrued as acquiescence by those who have denied democracy. Longer view...their self sacrifice for honor will be trumpeted when the manipulation of the Association through this egregious thwarting of the election bears fruit. There is the saying..."Absolute Power corrupts absolutely!" The denial of 5 members in good standing to run is evidence of the fruit of that adage. In addition, any victory when it has been fixed is so very shallow.
Time will tell how this all plays out.