HOA 2015 AND 2016 Elections Have Been Contested by Jimmy Walker
I wrote last winter about some troubling issues I had witnessed in the previous year with a specific board member on my neighborhood’s HOA Board of Directors. At the annual meeting, held in February of 2015, Jim Hermann and Mike Paine beat Jimmy Walker for the two available Board seats. And they won by a very wide margin. It was the largest HOA election turnout in our Foundation’s history, and so I thank everyone who took the time to vote.
Here we are, mere hours from the next annual meeting, where two different seats are up for election. The candidates this time around are Pam Page, Dan Garrison, and Kurt Huffman. I have no ill will toward any of these candidates, and encourage everyone to vote for any of them. I applaud all three of them for willing to serve our community in an extremely time-consuming position, which is often thankless.
I am posting today because of some recent emails I have received from Jimmy, and I wanted to share those with you. He sent these emails to all Roxborough Park Foundation committee chairs, and I happen to be one of them. Because he sent these to so many folks, I must assume the matter is no longer private between Jimmy and the Foundation.
I am sharing this information, as I am concerned that a previous board member who was so fiscally responsible, might move forward and pursue legal action against the Foundation, which would cost the Foundation many (tens of?) thousands of dollars in legal fees to mount a proper legal defense. That is not how I want my HOA fees to be spent. I’d much rather they go toward new amenities, or paying for our amazing staff. But this behavior is terrible, and if there is any way we as members of this community can stop this, we must.
February 10, 2016
Dear Mr. Lence:
The attached “Follow-up” letter was deposited in the U.S. Mail today.
This letter includes the adjusted payment for the few ballots I did receive.
To keep with the “transparency” theme of the Board, I have copied the various committees to include the Elections Committee.
For reference and historical purposes, I have attached to this email various supporting documents and communications.
The RPF’s General Manager, Brian Lence, responded on February 11.
Dear Mr. Walker,
I am in receipt of your e-mail of February 10, 2016, together with attachments, and feel that it is appropriate for me to respond to your requests, challenges and assertions.
I do this in my capacity as official liaison to the Election Committee but ultimately in my role as General Manager and Chief Executive & Administrative Officer of the Roxborough Park Foundation. In carrying out that role, I act as liaison between the Board and Members of the Foundation, although I work directly for the Foundation and its Members.
It is therefore incumbent upon me to work in the best interests of the Foundation, to preserve the integrity of its operations and to strive for community harmony and spirit. It is within this jurisdiction and these objectives that I respond as follows although I shall limit myself to matters that you contest “rise to the level of complete failure of this (2015) election”.
I have undertaken my own independent review of the documentation in the 2015 BOD Election box. I counted 479 ballots, instead of the 520 total reported to the Community, a difference of 41. It is my intuition that the ballots that contained just one vote for one candidate may have been counted twice for the purposes of the tally, as these numbered exactly 41.
On your “reproduced” tally sheet, the votes were:
Jim Hermann 416
Mike Paine 323
Jimmy Walker 180.
From my own count, the votes were:
Jim Hermann 415
Mike Paine 325
Jimmy Walker 177.
The certificate stated:
Jim Hermann 431
Mike Paine 325
Jimmy Walker 178
Regarding the discrepancy for Jim Hermann’s count, I do believe that the tally sheet overstates the actual count by 10 although I cannot account for the other 5 or 6.
Notwithstanding this, in the event that the initial vote tally during an election is extremely close, recounts will often take place and human errors such as these usually come to light. Similarly, errant discrepancies regarding one or two ballots are commonplace in the elections I have witnessed elsewhere. However, if you will permit me, the 82% margin between the votes cast for Mike Paine and yourself was not close enough such that it warranted a recount.
I would like to address your contention that the committee allowed more than 1 vote per ballot. You have not explicitly stated what your point is here so please correct me if I’m wrong, but are you suggesting that the 438 ballots that contained votes for two candidates should be null and void, and that the 38 “singular” votes cast for you (out of a total of 41 singular votes) would have made you successful in this election?
If that’s the case let me respond as follows:
a) Regarding the stipulations in the governing documents, the allocation of one vote per Lot in essence means that each member has equal voting rights. In other words, even if one member has a Lot which is twice the size of his neighbor, they still only get one vote each on any one issue. This is different to how it might be in Condominiums, for example. Here, percentages of the whole might apply, based on number of bedrooms in the unit, or square feet, giving an Owner of a 3-bedroom unit for example, a greater percentage of the overall vote than a 1-bedroom Owner.
b) You have already received confirmation from the Foundation’s legal counsel that the voting procedure was correct, and for the benefit of the recipients of this e-mail, I shall quote as follows:
“Each Lot is allowed one vote per ballot measure. There are in effect, two ballot measures (one per seat). So each owner is allowed to cast a vote per open seat, not per election. If Jimmy’s interpretation were to be upheld, what the association would be required to do is have an election for each open seat on separate ballots, with each owner voting once per ballot. Leads to costly elections, which is why you go one ballot, one vote per open seat. Also, there was no prejudice as the instructions were on the ballot and this is how it has been done every year since the beginning of the foundation.”
c) Finally, I would like to draw your attention to an open letter you wrote to the Community in the run-up to the Annual Meeting, which I have attached for everyone’s reference. In it, you state:
“You may vote for either 1 or 2 candidates”.
I trust you will no longer allege that Members were given incorrect instructions on how to cast their votes?
Consequently, and with reference to your letter of February 10, 2016 and following my own independent review, I do not see that there is anything further to resolve regarding the 2015 election and will defer to HindmanSanchez attorney David Firmin’s letter of December 15, 2015 which stated:
“..as the election was certified and a board was duly empaneled and has acted on behalf of the association for almost a year, the Association is barred by statute from taking any steps to alter or modify the results of the Election. The Colorado Nonprofit Act, C.R.S. § 7-127-204(5) states as follows with regard to a nonprofit corporation’s acceptance of votes: “Corporate action based on the acceptance or rejection of a vote, consent, written ballot, waiver, proxy appointment, or proxy appointment revocation under this section is valid unless a court of competent jurisdiction determines otherwise.”
According to this statute, once an election has been certified by the Association, the results of the election cannot be overturned, altered, or changed in any way without court order.”
Furthermore, I dismiss your challenge to the validity of this 2016 election. I am satisfied that the dates, deadlines and procedures as set forth in the Foundation’s Bylaws and additionally adopted guidelines are being followed. I also think that the Foundation has already incurred enough unbudgeted legal expenses in obtaining legal opinions to enable us to respond to your claims and assertions.
Finally, I respectfully suggest that you allow the three candidates who have come forward to volunteer their services for the good of the Community, to conduct their campaigns in good faith and without the distractions of your initiative to undermine the whole election process – past and present – and to bring it into disrepute. This is fundamentally unhealthy for the Foundation, detracts from the time and effort that Members devote for its benefit, and damages the underlying harmony and spirit which I have come to appreciate exists throughout the Community.
Here is Jimmy Walker’s letter to residents, as referred to in Brian’s email above.
Jimmy responded later that same day:
Thank you for your response. Preserving integrity is of the utmost importance to all of us…including MY integrity.
Currently, I am drinking water from a fire hose to get caught up here at work.
In addition, I’m going on a much needed vacation. So, this response is short and to the point.
On a quick perusal, I believe you have taken several items out of context or misunderstood our intent.
This would include responses we received from legal counsel and other “responses” we did not (example, 2(b) below).
Your legal counsel advised as to once elections are certified and indicated a willingness (at one time) to discuss the other concerns.
Much of your email deals with winners and losers. If you read the audit carefully, you will see this was not part of the many issues or contentions.
The issues were concerning processes and these issues began when the Board was incorrectly manipulated out of its role and duties as a Board.
As one can see, it was all downhill from there.
As for my campaign letter to the community, it is good it gets published here again.
At the time of its composing, I had to play the game as best as it was laid out at the time and as the circumstances dictated.
The concerns that are relevant now were relevant then. The Board never had a chance to delve into the concerns until it was far too late.
Hopefully, these email exchanges will spawn much needed open community debate on the issues especially as they relate to requirements of our governing documents
Then today, February 25 (three short hours before the annual meeting), Jimmy sent this email:
February 25, 2016
RE: 2016 Election of Directors
Ladies and Gentlemen:
I have had numerous interactions and correspondences with this Foundation concerning a number of issues to include the Election for Board of Directors (both last year and this year). Unfortunately, the Foundation and/or Board and/or RPF legal counsel have been unwilling to debate and/or make any attempt to resolve the issues raised (see my previous email).
It appears the discrepancies are continuing, if not growing (see attached). This is not the first or only complaint to be reported to me. I certainly hope that if any of the complainants have come to you (as I have always suggested), you would have acknowledged and treated those Members with far more professionalism than that which I have experienced with you.
Your legal counsel advised that, once an election is certified, only a court of competent jurisdiction can overturn. Therefore, and as indicated in my previous email and for those reasons stated in that email and others reason now and in the future being raised, I contest this election process and its results prior to the counting and/or certifying of said election.
I believe an audit along with a review with your legal council will be quite appropriate. Given that the governing document allow only 7 days to certify (or not) this election, my scheduled will be wide open for completion of these tasks with you.