There have been two changes to Southampton bylaws, and the results are not positive.
The first changed the bylaw limiting residents to one small cat or dog to any number of pets of any size — provided they did not disturb others. Lately, there has been an attempt to enforce the old bylaw. Of course this cannot be done without another bylaw change.
The second change had to do with the patios on lower units, and steps to upper units, which used to be the responsibility of individual unit owners (or both when shared). The Board had the authority to bill unit owners and perform the work if the unit owner did not.
Under the new bylaw the patios and stairs became the responsibility of the Association, but little or no consideration was given to what this would cost. The result: deferred maintenance, plundering from other budget items, and a condominium not as well maintained as it used to be.
The second change in bylaw was done in violation of the Virginia Condominium Act § 55-79.71.E which requires that "100 percent of the unit owners" agree to changing "the liability for common expenses".
Now it appears that more bylaw changes have been proposed. Of course, the Association's attorney would like to change the bylaws — it adds to his billings.
Friday, October 10, 2008
Tuesday, October 7, 2008
Southampton election a sham?
TO BE HAND DELIVERED AT 2008 ANNUAL MEETING
To: The Board of Directors, Southampton Condominium
My candidate statement below (reformatted to save paper) was submitted on time, and in the requested format to CMS. Its receipt was acknowledged by CMS’ Yolande Nanji. However, it was not included in the election package mailed to homeowners, and my name was not included on the proxy form.
The Association Secretary, under whose signature the election package was mailed, has not responded to my inquiry regarding this omission.
It is my understanding that this issue was not decided at a meeting of the Board, (1) who made the decision to exclude my statement from the election package, and (2) please cite the legal authority for this decision.
A Southampton election that excludes any Southampton homeowner without a legally supportable cause, is not valid.
ENVER MASUD
Engineering Management Consultant, Southampton Blogger
At the 2007 Annual Meeting, following the biggest voter turnout in Southampton history, the Southampton president and secretary were voted off the Board of Directors — they had withdrawn $8885 to defend themselves against charges of grand larceny. One would have thought that the new Board would rectify the matter. This has not been the case.
The new Board chair Conforti has refused to even hear witnesses in this matter (in which he may have a conflict of interest), and he has been supported by the other Board members who were on the Board at the time the $8885 was appropriated. Here is a summary of the facts:
• Julie Carole Handley, former Association Secretary, secretly received three checks from Association funds totaling $8885 for the legal defense of herself and Linda K. Thompson, former Association Chair, for their conduct on October 1, 2005.
• The first check to Handley for $3000 was paid out by CMS without any invoice, claim, or decision recorded in the minutes — the Secretary's responsibility — of Board meetings, and before their trial.
• The second check to Handley for $4085 was paid out by CMS without an invoice or claim to the association, or decision recorded in the minutes of Board meetings.
• The third check to Handley for $1800 was paid out by CMS without any recorded claim from Thompson and/or Handley, and without the “substance” of the Board's decision “reasonably identified” as required by the Virginia Condominium Act, §55-79.75.C.
• Southampton insurance carrier, Travelers, turned down the association's claim for “legal defense of two board members” Handley and Thompson.
• The minutes of Board meetings contain no record of a determination under Southampton Bylaws, Article VII, Section 1, that on October 1, 2005 Handley and Thompson, either did or did not, engage in “individual willful misconduct or bad faith”.
• Six witnesses presented statements that rebut Handley and Thompson's claim that, on October 1, 2005, they were carrying out their duties (removing trash) as members of the Board.
The Virginia Condominium Act, §55-79.75.C states: “No contract, motion or other action adopted, passed or agreed to in executive session shall become effective unless the executive organ or subcommittee or other committee thereof, following the executive session, reconvenes in open meeting and takes a vote on such contract, motion or other action which shall have its substance reasonably identified in the open meeting.”
At the 2007 Annual Meeting, Southampton Counsel Mercer stated that he advised the Board to pay Thompson and Handley after a “Not Guilty” verdict. The record shows that the first check to Thompson and Handley was paid on August 17, 2006 — before their trial on October 19, 2006.
However, the criteria for reimbursement is not whether Thompson and Handley were found guilty or not guilty, but whether they did or did not, engage in "individual willful misconduct or bad faith" (Southampton Bylaws, Article VII, Section 1). This decision is not recorded in the minutes.
This decision requires hearing from witnesses which the Board refuses to do, we still haven’t received the annual audit report, and if Thompson and Handley’s version of what happened on October 1, 2005 is different from that of the witnesses, we may even be looking at a case of fraud — a criminal offense.
If you’re interested in getting to the bottom of this matter, and recovering the $8885, please copy or cut out the statement below, sign, it print your name and address (joint owners must both sign), and return it to Enver Masud, 1707B S Hayes St., Arlington, VA 22202.
********************************
THE UNDERSIGNED HEREBY PETITION:
Within 60 days the Board of Directors, Southampton Condominium, shall convene in open session to (1) hear Julie Carole Handley’s and Linda K. Thompson’s claim, (2) obtain testimony of witnesses and others who have knowledge of these matters; (3) permit Association members to question participants, and (4) determine, based on the hearing record (a transcript shall be made available to Condominium owners), whether or not Handley and Thompson's conduct on October 1, 2005 constitutes "individual willful misconduct or bad faith" for which the Association is not liable.
Printed Name Signature Date
Spouse’s Name Spouse’s Signature Unit Number
********************************
For details see http://sh22202.blogspot.com/ and join our mailing list — email enver.masud@gmail.com.
Additionally, I believe we need a Board that is responsive to our needs, whose operations are transparent and lawful, which is mindful of its fiduciary duty to the owners, and which represents a broad range of knowledge and experience.
With your support we can achieve these goals. The following changes in the operation of Southampton Condominium will help us move toward them:
• If an Annual Meeting cannot be organized for lack of a quorum, the meeting will be adjourned as permitted in the Bylaws Article IV, Section 6. This option has been used in the past — the current Board has not exercised this option to obtain a quorum.
• Establish an Elections Committee to encourage participation and assure fairness. One suggestion is a “Meet the Candidates” event, held about one week before Annual Meetings, where candidates are given sufficient time to informally answer questions.
• Establish a Condominium Service Request Book (or online file), available for viewing by all homeowners, which tracks the status of service requests by members. This was a part of the management contract when the Condominium was established. Issues that cannot be resolved by the Management Agent should be placed on the agenda for the next Board meeting.
VOTE ONLY FOR YOUR TOP CHOICES
CASTING MORE VOTES WORKS AGAINST YOUR TOP CHOICES
IF YOU CAN’T COME TO THE ANNUAL MEETING, SEND YOUR PROXY TO
ENVER MASUD, 1707B S. HAYES ST., ARLINGTON, VA 22202
To: The Board of Directors, Southampton Condominium
My candidate statement below (reformatted to save paper) was submitted on time, and in the requested format to CMS. Its receipt was acknowledged by CMS’ Yolande Nanji. However, it was not included in the election package mailed to homeowners, and my name was not included on the proxy form.
The Association Secretary, under whose signature the election package was mailed, has not responded to my inquiry regarding this omission.
It is my understanding that this issue was not decided at a meeting of the Board, (1) who made the decision to exclude my statement from the election package, and (2) please cite the legal authority for this decision.
A Southampton election that excludes any Southampton homeowner without a legally supportable cause, is not valid.
Engineering Management Consultant, Southampton Blogger
At the 2007 Annual Meeting, following the biggest voter turnout in Southampton history, the Southampton president and secretary were voted off the Board of Directors — they had withdrawn $8885 to defend themselves against charges of grand larceny. One would have thought that the new Board would rectify the matter. This has not been the case.
The new Board chair Conforti has refused to even hear witnesses in this matter (in which he may have a conflict of interest), and he has been supported by the other Board members who were on the Board at the time the $8885 was appropriated. Here is a summary of the facts:
• Julie Carole Handley, former Association Secretary, secretly received three checks from Association funds totaling $8885 for the legal defense of herself and Linda K. Thompson, former Association Chair, for their conduct on October 1, 2005.
• The first check to Handley for $3000 was paid out by CMS without any invoice, claim, or decision recorded in the minutes — the Secretary's responsibility — of Board meetings, and before their trial.
• The second check to Handley for $4085 was paid out by CMS without an invoice or claim to the association, or decision recorded in the minutes of Board meetings.
• The third check to Handley for $1800 was paid out by CMS without any recorded claim from Thompson and/or Handley, and without the “substance” of the Board's decision “reasonably identified” as required by the Virginia Condominium Act, §55-79.75.C.
• Southampton insurance carrier, Travelers, turned down the association's claim for “legal defense of two board members” Handley and Thompson.
• The minutes of Board meetings contain no record of a determination under Southampton Bylaws, Article VII, Section 1, that on October 1, 2005 Handley and Thompson, either did or did not, engage in “individual willful misconduct or bad faith”.
• Six witnesses presented statements that rebut Handley and Thompson's claim that, on October 1, 2005, they were carrying out their duties (removing trash) as members of the Board.
The Virginia Condominium Act, §55-79.75.C states: “No contract, motion or other action adopted, passed or agreed to in executive session shall become effective unless the executive organ or subcommittee or other committee thereof, following the executive session, reconvenes in open meeting and takes a vote on such contract, motion or other action which shall have its substance reasonably identified in the open meeting.”
At the 2007 Annual Meeting, Southampton Counsel Mercer stated that he advised the Board to pay Thompson and Handley after a “Not Guilty” verdict. The record shows that the first check to Thompson and Handley was paid on August 17, 2006 — before their trial on October 19, 2006.
However, the criteria for reimbursement is not whether Thompson and Handley were found guilty or not guilty, but whether they did or did not, engage in "individual willful misconduct or bad faith" (Southampton Bylaws, Article VII, Section 1). This decision is not recorded in the minutes.
This decision requires hearing from witnesses which the Board refuses to do, we still haven’t received the annual audit report, and if Thompson and Handley’s version of what happened on October 1, 2005 is different from that of the witnesses, we may even be looking at a case of fraud — a criminal offense.
If you’re interested in getting to the bottom of this matter, and recovering the $8885, please copy or cut out the statement below, sign, it print your name and address (joint owners must both sign), and return it to Enver Masud, 1707B S Hayes St., Arlington, VA 22202.
********************************
THE UNDERSIGNED HEREBY PETITION:
Within 60 days the Board of Directors, Southampton Condominium, shall convene in open session to (1) hear Julie Carole Handley’s and Linda K. Thompson’s claim, (2) obtain testimony of witnesses and others who have knowledge of these matters; (3) permit Association members to question participants, and (4) determine, based on the hearing record (a transcript shall be made available to Condominium owners), whether or not Handley and Thompson's conduct on October 1, 2005 constitutes "individual willful misconduct or bad faith" for which the Association is not liable.
Printed Name Signature Date
Spouse’s Name Spouse’s Signature Unit Number
********************************
For details see http://sh22202.blogspot.com/ and join our mailing list — email enver.masud@gmail.com.
Additionally, I believe we need a Board that is responsive to our needs, whose operations are transparent and lawful, which is mindful of its fiduciary duty to the owners, and which represents a broad range of knowledge and experience.
With your support we can achieve these goals. The following changes in the operation of Southampton Condominium will help us move toward them:
• If an Annual Meeting cannot be organized for lack of a quorum, the meeting will be adjourned as permitted in the Bylaws Article IV, Section 6. This option has been used in the past — the current Board has not exercised this option to obtain a quorum.
• Establish an Elections Committee to encourage participation and assure fairness. One suggestion is a “Meet the Candidates” event, held about one week before Annual Meetings, where candidates are given sufficient time to informally answer questions.
• Establish a Condominium Service Request Book (or online file), available for viewing by all homeowners, which tracks the status of service requests by members. This was a part of the management contract when the Condominium was established. Issues that cannot be resolved by the Management Agent should be placed on the agenda for the next Board meeting.
CASTING MORE VOTES WORKS AGAINST YOUR TOP CHOICES
IF YOU CAN’T COME TO THE ANNUAL MEETING, SEND YOUR PROXY TO
ENVER MASUD, 1707B S. HAYES ST., ARLINGTON, VA 22202
Friday, September 19, 2008
Candidate excluded from election
My letter to Jess Watkins, Association Secretary, regarding the omission of my candidate statement follows:
I just received the proxy forms and candidate statements from CMS. My statement is not in the package, and my name is not on the proxy form.
My candidate statement was submitted in the form requested, and on time.
Please cite the Association's legal authority (Condominium Act, Declaration, Bylaw, etc.) that justifies the removal of my name from the list of candidates.
Enver Masud
1707B South Hayes St.
Arlington, VA 22202
I just received the proxy forms and candidate statements from CMS. My statement is not in the package, and my name is not on the proxy form.
My candidate statement was submitted in the form requested, and on time.
Please cite the Association's legal authority (Condominium Act, Declaration, Bylaw, etc.) that justifies the removal of my name from the list of candidates.
Enver Masud
1707B South Hayes St.
Arlington, VA 22202
Thursday, September 4, 2008
Where is the CPA's audit report?
Southampton Bylaws Article XIII, Section 3 requires an audit of the books and records of the Association at the close of each fiscal year. I don't believe we've been getting these annual audits.
At the last annual meeting, Conforti said he would be getting one done soon. What is its status?
Apparently, the Board has not yet been presented with the audit report. Is the draft completed? Are Conforti and CMS negotiating changes to the report with the auditors without involving the Board?
Given the unlawful withdrawal of $8885 from Association funds, transparency in the audit process would lend greater credibility to the audit.
At the last annual meeting, Conforti said he would be getting one done soon. What is its status?
Apparently, the Board has not yet been presented with the audit report. Is the draft completed? Are Conforti and CMS negotiating changes to the report with the auditors without involving the Board?
Given the unlawful withdrawal of $8885 from Association funds, transparency in the audit process would lend greater credibility to the audit.
New rule on pets contradicts bylaws
On August 28, Yolande Nanji at CMS sent out an email on house rules. Regarding pets it says: "One dog or cat, weighing 25 pounds or less, is permitted."
The orginal Bylaws, Article X, Section 4e, permitted the keeping of a "small dog, cat". I had worked to get a definition of small. The Board fought back by unlawfully changing Southampton Bylaws to permit any number of animals of any size.
I protested the change in a letter dated December 6, 1997 (reproduced below).
Pursuant to your letter of November 19, 1997, I was able to examine the pet bylaws amendment file. In addition to violations noted in the August 25, 1997 and November 10, 1997 letters to the Board, I noted the following:
1. The Board is conspicuous by its absence in the decisions relating to the pet bylaws amendment.
2. There is only one letter from the Board in this file, dated January 29, 1996, which says: "Unless modified, this preliminary determination shall become effective on March 14, 1996. Enforcement will begin on September 7, 1996 pursuant to the December 7, 1995 letter from the Board to the Unit Owners."
3. While the Boards decision on record informs Unit owners that enforcement of then existing bylaws will begin, a group calling itself Coalition of Neighbors of Southampton was circulating a petition to amend the pet bylaws.
4. Said Coalition of Neighbors of Southampton utilized the services of CMS, Association Counsel, and the editor of the Association Newsletter to gather signatures for their petition.
According to § 55-79.51 "condominium instruments shall be construed together and shall be deemed to incorporate one another to the extent that any requirement of this chapter as to the content of one shall be deemed satisfied if the deficiency can be cured by reference to any of the others. In the event of any conflict between the condominium instruments, the declaration shall control; but particular provisions shall control more general provisions, except that a construction conformable with the statute shall in all cases control over any construction inconsistent therewith." This raises several questions:
1. Why were Association funds spent on the efforts of the Coalition of Neighbors of Southampton? Are Association funds available to anyone who wishes to circulate a petition?
2. According to Bylaws Article XIV Section 1. Amendments may be proposed by the Board of Directors or by petition signed by members representing at least twenty-five percent (25%) of the total votes of the Condominium." Why were these petitions, which are only proposals, substituted for the required votes? And, if they were accepted as votes, then:
3. According to § 55-79.77 even a proxy is void "if the signatures of any of those executing the same have not been witnessed by a person who shall sign his full name and address." Why were these petitions, not so witnessed, accepted as votes to amend the Bylaws?
4. According to § 55-79.77 "Any proxy shall terminate after the first meeting held on or after the date of that proxy or any recess or adjournment of that meeting held within thirty days. Why were these proxies not terminated as stated in § 55-79.77?
And the Board is a party to the same violations of Virginia law, and the condominium instruments, in its attempt to change the Declaration regarding Limited Common Elements.
The Board stuck with the unlawful change in the Bylaws, and Association Counsel supported the Board. Now it appears that the Board, without any change in the Bylaws, is imposing a rule that contradicts them.
I'm all for one small dog or cat (or no pets at all), but I'm for observing the Bylaws first. The Board needs to present the legal basis for this new rule.
FYI: The only other Bylaw changed from the original is the one on common areas. It too was done unlawfully. I fought that also, but Association Counsel supported the Board.
The orginal Bylaws, Article X, Section 4e, permitted the keeping of a "small dog, cat". I had worked to get a definition of small. The Board fought back by unlawfully changing Southampton Bylaws to permit any number of animals of any size.
I protested the change in a letter dated December 6, 1997 (reproduced below).
Pursuant to your letter of November 19, 1997, I was able to examine the pet bylaws amendment file. In addition to violations noted in the August 25, 1997 and November 10, 1997 letters to the Board, I noted the following:
1. The Board is conspicuous by its absence in the decisions relating to the pet bylaws amendment.
2. There is only one letter from the Board in this file, dated January 29, 1996, which says: "Unless modified, this preliminary determination shall become effective on March 14, 1996. Enforcement will begin on September 7, 1996 pursuant to the December 7, 1995 letter from the Board to the Unit Owners."
3. While the Boards decision on record informs Unit owners that enforcement of then existing bylaws will begin, a group calling itself Coalition of Neighbors of Southampton was circulating a petition to amend the pet bylaws.
4. Said Coalition of Neighbors of Southampton utilized the services of CMS, Association Counsel, and the editor of the Association Newsletter to gather signatures for their petition.
According to § 55-79.51 "condominium instruments shall be construed together and shall be deemed to incorporate one another to the extent that any requirement of this chapter as to the content of one shall be deemed satisfied if the deficiency can be cured by reference to any of the others. In the event of any conflict between the condominium instruments, the declaration shall control; but particular provisions shall control more general provisions, except that a construction conformable with the statute shall in all cases control over any construction inconsistent therewith." This raises several questions:
1. Why were Association funds spent on the efforts of the Coalition of Neighbors of Southampton? Are Association funds available to anyone who wishes to circulate a petition?
2. According to Bylaws Article XIV Section 1. Amendments may be proposed by the Board of Directors or by petition signed by members representing at least twenty-five percent (25%) of the total votes of the Condominium." Why were these petitions, which are only proposals, substituted for the required votes? And, if they were accepted as votes, then:
3. According to § 55-79.77 even a proxy is void "if the signatures of any of those executing the same have not been witnessed by a person who shall sign his full name and address." Why were these petitions, not so witnessed, accepted as votes to amend the Bylaws?
4. According to § 55-79.77 "Any proxy shall terminate after the first meeting held on or after the date of that proxy or any recess or adjournment of that meeting held within thirty days. Why were these proxies not terminated as stated in § 55-79.77?
And the Board is a party to the same violations of Virginia law, and the condominium instruments, in its attempt to change the Declaration regarding Limited Common Elements.
The Board stuck with the unlawful change in the Bylaws, and Association Counsel supported the Board. Now it appears that the Board, without any change in the Bylaws, is imposing a rule that contradicts them.
I'm all for one small dog or cat (or no pets at all), but I'm for observing the Bylaws first. The Board needs to present the legal basis for this new rule.
FYI: The only other Bylaw changed from the original is the one on common areas. It too was done unlawfully. I fought that also, but Association Counsel supported the Board.
Saturday, August 16, 2008
Fire Prevention Code prohibitions on grills
Notices were distributed today in Southampton regarding Fire Prevention Code prohibitions on the use of certain cooking devices in units, balconies, and within 15 feet of the units.
Electric cookers and grills may be used, but not charcoal of propane grills. Storage of gasoline, LPG, and flammable liquids is also prohibited.
Violations on can earn the offender as much as a $2500 fine and/or 12 months in jail.
There's another question, would Southampton insurance cover a building fire, if the Board fails to enforce the Fire Prevention Code?
Electric cookers and grills may be used, but not charcoal of propane grills. Storage of gasoline, LPG, and flammable liquids is also prohibited.
Violations on can earn the offender as much as a $2500 fine and/or 12 months in jail.
There's another question, would Southampton insurance cover a building fire, if the Board fails to enforce the Fire Prevention Code?
Thursday, August 14, 2008
New rules for homeowners attending Board meetings
The Board is set to vote today on new rules for homeowners participating in meetings of the Board of Directors.
One Board member, Joe Smith, is concerned that these rules are "unwarranted," and will, "potentially", "will have an adverse impact on the Board's relationship with the homeowners."
Joe says Southampton has functioned for 30 years without such rules, and he perceives that "in the last several years the Board has somewhat evolved towards a self-serving organization, ignoring, possibly actually deemphasizing the importance and role of the Association members who are the reason we exist as a Board."
It's ironic that Board members, while themselves refusing to follow the rules set out in the Virginia Condominium Act, are preparing to impose new rules on the members of the Association.
One Board member, Joe Smith, is concerned that these rules are "unwarranted," and will, "potentially", "will have an adverse impact on the Board's relationship with the homeowners."
Joe says Southampton has functioned for 30 years without such rules, and he perceives that "in the last several years the Board has somewhat evolved towards a self-serving organization, ignoring, possibly actually deemphasizing the importance and role of the Association members who are the reason we exist as a Board."
It's ironic that Board members, while themselves refusing to follow the rules set out in the Virginia Condominium Act, are preparing to impose new rules on the members of the Association.
Wednesday, July 2, 2008
New Virginia law: oversight of association management companies
* Virginia shall create a Common Interest Community Board, with powers similar to the Real Estate Board, to establish licensing procedures for community managers and to hear consumer complaints against licensees.
* On January 1, 2009, all entities offering professional association management services for a fee will be required to be licensed in Virginia.
* By July 1, 2011, all company employees that have the primary responsibility for association management will obtain certification from the Common Interest Community Board that the individual possesses the skills and character necessary for association management.
* Association management companies will be required to obtain surety bonds in the amount of $2 million or the amount of operating and reserve balances of the association, whichever is less.
* All association funds must be kept separate from the management company’s operating accounts.
* A Common Interest Community Ombudsman will be named to educate and assist association members.
* Annual reports on complaints and inquiries shall be submitted to the General Assembly and the Housing Commission.
* A Common Interest Community Management Recovery Fund is established to pay claims resulting from violations of the statute.
* On January 1, 2009, all entities offering professional association management services for a fee will be required to be licensed in Virginia.
* By July 1, 2011, all company employees that have the primary responsibility for association management will obtain certification from the Common Interest Community Board that the individual possesses the skills and character necessary for association management.
* Association management companies will be required to obtain surety bonds in the amount of $2 million or the amount of operating and reserve balances of the association, whichever is less.
* All association funds must be kept separate from the management company’s operating accounts.
* A Common Interest Community Ombudsman will be named to educate and assist association members.
* Annual reports on complaints and inquiries shall be submitted to the General Assembly and the Housing Commission.
* A Common Interest Community Management Recovery Fund is established to pay claims resulting from violations of the statute.
Tuesday, June 10, 2008
Sue us says Board, we're not answering questions
At the May 8, 2008 Board meeting, Conforti and Dogan continued to duck questions regarding the Association funds secretly withdrawn by Julie Handley.
Conforti said, "the matter has been concluded." Dogan added, "it was inappropriate for the Board to discuss related material and that Mr. Mercer would reply".
Of course, the matter is not "closed" — what "closed" means in our context is unclear, and it is never inappropriate for any homeowner to ask questions regarding the use of Association funds.
Conforti added, "Legal Counsel did not work for individual members of the community." Apparently, Conforti does not understand that formal notices to the Association may be delivered to Mr.Mercer — the legal agent of the Association.
In addition, Mr. Mercer played a part in this affair, so it was appropriate to include him in the letter to the Board.
Conforti concluded that we were "free to sue and that no action was to be taken by the Board." No one has threatened to sue the Association in this matter.
Conforti said, "the matter has been concluded." Dogan added, "it was inappropriate for the Board to discuss related material and that Mr. Mercer would reply".
Of course, the matter is not "closed" — what "closed" means in our context is unclear, and it is never inappropriate for any homeowner to ask questions regarding the use of Association funds.
Conforti added, "Legal Counsel did not work for individual members of the community." Apparently, Conforti does not understand that formal notices to the Association may be delivered to Mr.Mercer — the legal agent of the Association.
In addition, Mr. Mercer played a part in this affair, so it was appropriate to include him in the letter to the Board.
Conforti concluded that we were "free to sue and that no action was to be taken by the Board." No one has threatened to sue the Association in this matter.
Sunday, June 1, 2008
New Virginia law will create a Common Interest Community Board
Elizabeth Razzi of the Washington Post wrote today that "A new Virginia law will create a Common Interest Community Board, which will have an ombudsman to field complaints from homeowners. It will take months to get the new board up and running. Eventually, there will be links to it from the Department of Professional and Occupational Regulation's Web site at http://www.dpor.virginia.gov."
"Montgomery County is one of the few jurisdictions in the area that has had a mechanism in place to intervene in [such] disputes." They recently ordered the Devonshire East Homeowners Association in Rockville to pay Jo-Ann Fiscina's legal expenses, which she said exceed $20,000.
Before Southampton ends up with a legal bill for the Board's refusing to have a hearing, and/or answer questions, on the $8885 plus spent defending Thompson and Handley in a criminal trial, do call the Chairman, Frank Conforti, on (703) 892-0891 and express your concerns.
"Montgomery County is one of the few jurisdictions in the area that has had a mechanism in place to intervene in [such] disputes." They recently ordered the Devonshire East Homeowners Association in Rockville to pay Jo-Ann Fiscina's legal expenses, which she said exceed $20,000.
Before Southampton ends up with a legal bill for the Board's refusing to have a hearing, and/or answer questions, on the $8885 plus spent defending Thompson and Handley in a criminal trial, do call the Chairman, Frank Conforti, on (703) 892-0891 and express your concerns.
Tuesday, May 6, 2008
Proper use of "executive sessions"
It appears that the Board, after being told that "legal matters" are not included in § 55-79.75.C as issues that may be discussed in executive session, has replaced "legal matters" with "probable litigation" to justify meeting in executive session.
The Board may lawfully meet in executive session to discuss "probable litigation" which is defined in § 55-79.74:1.C.3 as "those instances where there has been a specific threat of litigation from a party or the legal counsel of a party".
The Board may lawfully meet in executive session to discuss "probable litigation" which is defined in § 55-79.74:1.C.3 as "those instances where there has been a specific threat of litigation from a party or the legal counsel of a party".
Tuesday, April 22, 2008
Cover up of check given to Handley while awaiting trial on a charge of grand larceny
Enver Masud
1707B S. Hayes Street
Arlington, VA 22202
April 22, 2008
David S. Mercer
Agent, Southampton Condominium
MercerTrigiani
112 South Alfred Street
Alexandria, Virginia 22314
RE: $3000 CHECK ISSUED FROM SOUTHAMPTON CONDOMINIUM ACCOUNT TO JULIE CAROLE HANDLEY FBO HANDLEY AND LINDA K. THOMPSON
Julie Handley was issued three checks ($3000, #1711; $4085, #1771; $1800, #1818) drawn on the Southampton Condominium (the Association) account by CMS Services, signed by Tom Patti. This letter concerns the first check for $3000 (copy attached) issued while Handley was awaiting trial on a charge of “Grand Larceny”. Examining the facts regarding this check may help unravel the issues raised during the October 11, 2008 Annual Meeting.
1 – The arrest on charges of “Grand Larceny” (Case #GC06001924-00 and #GC06001925-00) of Linda K. Thompson and Julie Carole Handley was a private matter — not a Southampton Condominium matter.
At the October 13, 2005 Annual Meeting, a couple residing at Southampton Condominium overheard the Association’s Attorney tell the Reddy’s, whose plants had allegedly been stolen by Thompson and Handley on October 1, 2005, that this was not a matter for the association.
Thompson was, at that time, President of the Association. Handley was its Secretary.
Thompson and/or Handley paid Brian J. Moran, P.C. $1500 by check #2246 on March 24, 2006; $1500 with a Visa on May 18, 2006; $685 by check #2301 on August 10, 2006; $100 by check #2318 on September 27, 2006; $2000 by MasterCard on October 18, 2006.
Between March 24, 2006 and October 18, 2006 Thompson and/or Handley made five payments to Moran — three of them after their arrest on May 17, 2006. These payments demonstrate that Thompson, Handley, and Southampton Condominium were treating Thompson and Handley’s arrest as a private matter.
2 – There is no evidence in Southampton Condominium records that prior to issuing the $3000 check (#1711), the Board of Directors met to consider whether or not the Association was liable for Thompson and Handley’s conduct on October 1, 2005.
Southampton Bylaws, Article VII, Section 1 states: “The officers and Directors of the Association shall not be liable to the members of the Association for any mistake of judgment, negligence, or otherwise, except for their own individual willful misconduct or bad faith.”
There is no evidence in Southampton Condominium records that the Board had made a determination that on August 17, 2006 this issue had become an Association matter. Absent this determination, the Association is not liable for defending Thompson and/or Handley against the charge of grand larceny.
Rachel C. Plzak, Bond Claim Representative at St. Paul Travelers — the Association’s insurance carrier, wrote to CMS that “that this matter never rose to meet the definition of a Claim”.
While the Board is authorized to settle claims against the Association, Thompson and/or Handley had filed no claim, invoice or explanation for seeking reimbursement, at the time the check for $3000 (#1711) was issued.
Thompson and Handley received an invoice from Brian J. Moran on November 6, 2006 (attached) — after the check was issued — which they provided to CMS Services without explanation as to why the Association is liable.
3 – There is no evidence in Southampton Condominium records that the Board of Directors authorized the $3000 (check #1711) issued to Handley.
I have searched the minutes of Board meeting, and find no evidence of an agenda item indicating that the Board of Directors even met to consider Thompson and/or Handley's liability to the Association pursuant to § 55-79.75.B.
If the Association’s liability was determined in executive session, there is no record in the minutes of an “affirmative vote in an open meeting to assemble in executive session” and/or motion stating “specifically the purpose for the executive session” pursuant to § 55-79.75.C.
Since the check was issued while Thompson and Handley were paying their attorney themselves — indicating they considered it a private matter, it is questionable that their meeting with the Board in executive session came under the provisions of § 55-79.75.C.
4 – Even if the Board met to authorize the $3000 check (#1711), their decision is not “effective” under Virginia law.
§ 55-79.75.C. states: “No contract, motion or other action adopted, passed or agreed
to in executive session shall become effective unless the executive organ or
subcommittee or other committee thereof, following the executive session, reconvenes in open meeting and takes a vote on such contract, motion or other action which shall have its substance reasonably identified in the open meeting.”
There is no evidence in the record that the Board’s decision had its “substance reasonably identified in the open meeting” pursuant to § 55-79.75.C.
Since Julie Handley was then the Association’s Secretary, she had a duty to keep accurate minutes, and in this instance one would expect her to be particularly careful.
5 –Thompson, Handley, and Frank Conforti attempted to stymie investigation of this matter.
The January 11, 2007 minutes of the Board meeting state that the Board “resolved to satisfy the request for reimbursement of legal fees.” This was the first indication members of the Association had that something was amiss.
Joe Smith and I began looking into this matter around March 2007, and we were told that the “legal fees” referred to $1800 paid to Stephen R. Pickard, P.C. to “expunge the record” after Thompson and Handley had been found “not guilty” at their trial on October 19, 2006.
More investigation by Joe Smith and I revealed that the two other checks had been issued to Handley — checks for $3000 (#1711) and $4085 (#1771).
Our inquiries led to Frank Conforti, on October 4, 2007, threatening to sue me.
On October 8, 2007 I received a letter from Bernard J. DiMuro, attorney for Handley and Thompson, accusing me of issuing “false and defamatory statements” about his clients.
Frank Conforti has stymied attempts to get to the bottom of this matter by refusing to answer my letters, and by refusing to hear from witnesses who contradict Thompson and Handley’s story. He has refused to provide a hearing to the Reddy’s whose plants were stolen — allegedly by Thompson and Handley. Excerpts from witness statements are attached.
Conclusion and Demand
Thompson and/or Handley were awaiting trial, paying for their legal defense from personal funds, and had filed no claim, invoice, or explanation for seeking reimbursement when they were issued a Southampton Condominium check, dated August 17, 2006, for $3000 (#1711) by CMS Services.
Since Handley was the Association’s Secretary during the period in question, the absence of references to three checks she received in the minutes of the Association, for which she is responsible, raises a red flag.
That checks issued were made to Handley, although Moran’s services were provided to both Thompson and Handley, raises another red flag — did Thompson, who was then President of the Association, authorize the checks?
The Board can authorize payment retroactively, however, that may not negate criminal wrongdoing, if any. Conforti attempted to do so at the April 10, 2008 meeting of the Board.
Frank Conforti, now President of the Association, and Robert Dogan, now Vice President, have stymied attempts to unravel this matter by Joe Smith, Karunesh Khanna, and myself. Joe Smith was elected to the Board on October 11, 2007. Karunesh Khanna was also elected on October 11, 2007, and is serving as Treasurer.
As a homeowner at Southampton Condominium, I hereby ask for answers to the following questions:
1 – When did the Board determine that the Association was liable for the legal defense of Thompson and Handley?
2 – What criteria did the Board use to determine that the Association was liable for the legal defense of Thompson and Handley?
3 – Why did the Board choose to hear from the perpetrators of the alleged crime, but not from the victims, and their witnesses?
4 – When did the Board authorize the first check for $3000 (#1711) to Handley?
5 – How was Board’s authorization transmitted to CMS Services and/or Tom Patti?
6 – Did Steve Dougherty, the Association’s Treasurer on the day the check for $3000 (#1711) was issued, authorize the check?
7 – Why was the check for $3000 (#1711) made to Handley alone, and not Thompson and Handley?
8 – What is the effective date of resignation of Steve Dougherty, and when and by what means did Dougherty inform the Board of his resignation?
9 – What is the effective date on which Conforti was appointed Treasurer, and who moved to appoint him to the Board?
10 – What part did Board members Dogan, Pariente, Seekford, and Watkins play in the decision to issue the first check for $3000 (#1711) to Handley?
11 – Was the pending criminal trial of Thompson and Handley disclosed to potential homebuyers in the document packages they were provided by CMS?
12 – Since the County Attorney had not charged the Association, and/or Handley and Thompson as officers of the Association, why was Handley and Thompson’s claim for reimbursement not presented in open session?
13 –Did members of the Board with a conflict of interest disclose them prior to voting on issues herein? For several years, the Association had an unelected Board that included some nominated for appointment to the Board by either Thompson or Handley.
14 – What were the conflicts of interest disclosed, pursuant to Bylaws Article VII, Section 2, when the first check for $3000 (#1711) was issued to Handley.
In summary, the record appears to show misappropriation of Association funds, and a cover up, that may amount to criminal wrongdoing. I look forward to an early response so that this issue may be resolved.
1707B S. Hayes Street
Arlington, VA 22202
April 22, 2008
David S. Mercer
Agent, Southampton Condominium
MercerTrigiani
112 South Alfred Street
Alexandria, Virginia 22314
RE: $3000 CHECK ISSUED FROM SOUTHAMPTON CONDOMINIUM ACCOUNT TO JULIE CAROLE HANDLEY FBO HANDLEY AND LINDA K. THOMPSON
Julie Handley was issued three checks ($3000, #1711; $4085, #1771; $1800, #1818) drawn on the Southampton Condominium (the Association) account by CMS Services, signed by Tom Patti. This letter concerns the first check for $3000 (copy attached) issued while Handley was awaiting trial on a charge of “Grand Larceny”. Examining the facts regarding this check may help unravel the issues raised during the October 11, 2008 Annual Meeting.
1 – The arrest on charges of “Grand Larceny” (Case #GC06001924-00 and #GC06001925-00) of Linda K. Thompson and Julie Carole Handley was a private matter — not a Southampton Condominium matter.
At the October 13, 2005 Annual Meeting, a couple residing at Southampton Condominium overheard the Association’s Attorney tell the Reddy’s, whose plants had allegedly been stolen by Thompson and Handley on October 1, 2005, that this was not a matter for the association.
Thompson was, at that time, President of the Association. Handley was its Secretary.
Thompson and/or Handley paid Brian J. Moran, P.C. $1500 by check #2246 on March 24, 2006; $1500 with a Visa on May 18, 2006; $685 by check #2301 on August 10, 2006; $100 by check #2318 on September 27, 2006; $2000 by MasterCard on October 18, 2006.
Between March 24, 2006 and October 18, 2006 Thompson and/or Handley made five payments to Moran — three of them after their arrest on May 17, 2006. These payments demonstrate that Thompson, Handley, and Southampton Condominium were treating Thompson and Handley’s arrest as a private matter.
2 – There is no evidence in Southampton Condominium records that prior to issuing the $3000 check (#1711), the Board of Directors met to consider whether or not the Association was liable for Thompson and Handley’s conduct on October 1, 2005.
Southampton Bylaws, Article VII, Section 1 states: “The officers and Directors of the Association shall not be liable to the members of the Association for any mistake of judgment, negligence, or otherwise, except for their own individual willful misconduct or bad faith.”
There is no evidence in Southampton Condominium records that the Board had made a determination that on August 17, 2006 this issue had become an Association matter. Absent this determination, the Association is not liable for defending Thompson and/or Handley against the charge of grand larceny.
Rachel C. Plzak, Bond Claim Representative at St. Paul Travelers — the Association’s insurance carrier, wrote to CMS that “that this matter never rose to meet the definition of a Claim”.
While the Board is authorized to settle claims against the Association, Thompson and/or Handley had filed no claim, invoice or explanation for seeking reimbursement, at the time the check for $3000 (#1711) was issued.
Thompson and Handley received an invoice from Brian J. Moran on November 6, 2006 (attached) — after the check was issued — which they provided to CMS Services without explanation as to why the Association is liable.
3 – There is no evidence in Southampton Condominium records that the Board of Directors authorized the $3000 (check #1711) issued to Handley.
I have searched the minutes of Board meeting, and find no evidence of an agenda item indicating that the Board of Directors even met to consider Thompson and/or Handley's liability to the Association pursuant to § 55-79.75.B.
If the Association’s liability was determined in executive session, there is no record in the minutes of an “affirmative vote in an open meeting to assemble in executive session” and/or motion stating “specifically the purpose for the executive session” pursuant to § 55-79.75.C.
Since the check was issued while Thompson and Handley were paying their attorney themselves — indicating they considered it a private matter, it is questionable that their meeting with the Board in executive session came under the provisions of § 55-79.75.C.
4 – Even if the Board met to authorize the $3000 check (#1711), their decision is not “effective” under Virginia law.
§ 55-79.75.C. states: “No contract, motion or other action adopted, passed or agreed
to in executive session shall become effective unless the executive organ or
subcommittee or other committee thereof, following the executive session, reconvenes in open meeting and takes a vote on such contract, motion or other action which shall have its substance reasonably identified in the open meeting.”
There is no evidence in the record that the Board’s decision had its “substance reasonably identified in the open meeting” pursuant to § 55-79.75.C.
Since Julie Handley was then the Association’s Secretary, she had a duty to keep accurate minutes, and in this instance one would expect her to be particularly careful.
5 –Thompson, Handley, and Frank Conforti attempted to stymie investigation of this matter.
The January 11, 2007 minutes of the Board meeting state that the Board “resolved to satisfy the request for reimbursement of legal fees.” This was the first indication members of the Association had that something was amiss.
Joe Smith and I began looking into this matter around March 2007, and we were told that the “legal fees” referred to $1800 paid to Stephen R. Pickard, P.C. to “expunge the record” after Thompson and Handley had been found “not guilty” at their trial on October 19, 2006.
More investigation by Joe Smith and I revealed that the two other checks had been issued to Handley — checks for $3000 (#1711) and $4085 (#1771).
Our inquiries led to Frank Conforti, on October 4, 2007, threatening to sue me.
On October 8, 2007 I received a letter from Bernard J. DiMuro, attorney for Handley and Thompson, accusing me of issuing “false and defamatory statements” about his clients.
Frank Conforti has stymied attempts to get to the bottom of this matter by refusing to answer my letters, and by refusing to hear from witnesses who contradict Thompson and Handley’s story. He has refused to provide a hearing to the Reddy’s whose plants were stolen — allegedly by Thompson and Handley. Excerpts from witness statements are attached.
Conclusion and Demand
Thompson and/or Handley were awaiting trial, paying for their legal defense from personal funds, and had filed no claim, invoice, or explanation for seeking reimbursement when they were issued a Southampton Condominium check, dated August 17, 2006, for $3000 (#1711) by CMS Services.
Since Handley was the Association’s Secretary during the period in question, the absence of references to three checks she received in the minutes of the Association, for which she is responsible, raises a red flag.
That checks issued were made to Handley, although Moran’s services were provided to both Thompson and Handley, raises another red flag — did Thompson, who was then President of the Association, authorize the checks?
The Board can authorize payment retroactively, however, that may not negate criminal wrongdoing, if any. Conforti attempted to do so at the April 10, 2008 meeting of the Board.
Frank Conforti, now President of the Association, and Robert Dogan, now Vice President, have stymied attempts to unravel this matter by Joe Smith, Karunesh Khanna, and myself. Joe Smith was elected to the Board on October 11, 2007. Karunesh Khanna was also elected on October 11, 2007, and is serving as Treasurer.
As a homeowner at Southampton Condominium, I hereby ask for answers to the following questions:
1 – When did the Board determine that the Association was liable for the legal defense of Thompson and Handley?
2 – What criteria did the Board use to determine that the Association was liable for the legal defense of Thompson and Handley?
3 – Why did the Board choose to hear from the perpetrators of the alleged crime, but not from the victims, and their witnesses?
4 – When did the Board authorize the first check for $3000 (#1711) to Handley?
5 – How was Board’s authorization transmitted to CMS Services and/or Tom Patti?
6 – Did Steve Dougherty, the Association’s Treasurer on the day the check for $3000 (#1711) was issued, authorize the check?
7 – Why was the check for $3000 (#1711) made to Handley alone, and not Thompson and Handley?
8 – What is the effective date of resignation of Steve Dougherty, and when and by what means did Dougherty inform the Board of his resignation?
9 – What is the effective date on which Conforti was appointed Treasurer, and who moved to appoint him to the Board?
10 – What part did Board members Dogan, Pariente, Seekford, and Watkins play in the decision to issue the first check for $3000 (#1711) to Handley?
11 – Was the pending criminal trial of Thompson and Handley disclosed to potential homebuyers in the document packages they were provided by CMS?
12 – Since the County Attorney had not charged the Association, and/or Handley and Thompson as officers of the Association, why was Handley and Thompson’s claim for reimbursement not presented in open session?
13 –Did members of the Board with a conflict of interest disclose them prior to voting on issues herein? For several years, the Association had an unelected Board that included some nominated for appointment to the Board by either Thompson or Handley.
14 – What were the conflicts of interest disclosed, pursuant to Bylaws Article VII, Section 2, when the first check for $3000 (#1711) was issued to Handley.
In summary, the record appears to show misappropriation of Association funds, and a cover up, that may amount to criminal wrongdoing. I look forward to an early response so that this issue may be resolved.
Saturday, April 12, 2008
Board votes to cover up past wrongdoing
In the matter of the Association's reimbursement of Thompson and Handley for their legal defense in a criminal trial, we understand that the Board voted on Thursday to cover up past wrongdoing.
Two members opposed the motion—the treasurer Karunesh Khanna, and Joe Smith.
The withdrawal of funds from the Association was done in secret, and Thompson and Handley, and current Chairman Conforti, used legal threats in an attempt to silence opposition.
Two members opposed the motion—the treasurer Karunesh Khanna, and Joe Smith.
The withdrawal of funds from the Association was done in secret, and Thompson and Handley, and current Chairman Conforti, used legal threats in an attempt to silence opposition.
Wednesday, April 9, 2008
Mugging in Southampton
Any Wong sent us this note from a Southampton resident: "My next door neighbor told me that she was walking on the sidewalk within the units, the night before Easter at about 7:30 p.m. and a 6'1" black male began to follow her as she spoke on her cell phone. When she hung up, he approached her and forced her to give up her pocketbook, etc… They found her pocketbook on a lawn in Alexandria the next day. She was not suspicious of the man because he had his cell out and was pretending to just be walking in the complex and talking on the phone."
Sunday, March 16, 2008
QUESTIONS re payments to Handley and Thompson
1 - Was the fact of Handley and Thompson’s arrest noted in the packages provided to potential homebuyers bewteen May 17, 2006 and October 19, 2006?
2 - Following Handley and Thompson’s arrest, did the Association or its agents provide any written statements regarding this matter to the Office of the County Attorney?
3 - Following Handley and Thompson’s arrest, did the Association or its agents make any attempt to defend Handley and Thompson’s conduct on October 1, 2005 before the the Office of the County Attorney?
4 - When and how did the Board decide that Handley and Thompson’s conduct on October 1, 2005 did not constitute their “own individual willful misconduct or bad faith" for which the Association is not liable?
5 - Given that there is no vote recorded in the minutes of Board meeings, why was check #1711 written to Julie Handley without an invoice or Board vote?
6 - Given that there is no vote recorded in the minutes of Board meeings, why were two checks (#1771, #1818) written to Julie Handley without an invoice from Julie Handley or Board vote?
7 - When and how did Stephen Dougherty tender his resignation as Treasurer?
8 - How was Frank Conforti identified and selected to become Treasurer to replace Stephen Dougherty?
9 - Since the County Attorney was not charging the Association, and/or Handley and Thompson as officers of the Association, why was Handley and Thompson’s claim for reimbursement not presented in open session pursuant to § 55-79.75.C?
2 - Following Handley and Thompson’s arrest, did the Association or its agents provide any written statements regarding this matter to the Office of the County Attorney?
3 - Following Handley and Thompson’s arrest, did the Association or its agents make any attempt to defend Handley and Thompson’s conduct on October 1, 2005 before the the Office of the County Attorney?
4 - When and how did the Board decide that Handley and Thompson’s conduct on October 1, 2005 did not constitute their “own individual willful misconduct or bad faith" for which the Association is not liable?
5 - Given that there is no vote recorded in the minutes of Board meeings, why was check #1711 written to Julie Handley without an invoice or Board vote?
6 - Given that there is no vote recorded in the minutes of Board meeings, why were two checks (#1771, #1818) written to Julie Handley without an invoice from Julie Handley or Board vote?
7 - When and how did Stephen Dougherty tender his resignation as Treasurer?
8 - How was Frank Conforti identified and selected to become Treasurer to replace Stephen Dougherty?
9 - Since the County Attorney was not charging the Association, and/or Handley and Thompson as officers of the Association, why was Handley and Thompson’s claim for reimbursement not presented in open session pursuant to § 55-79.75.C?
Friday, March 14, 2008
Board chairman refuses to examine the facts
Frank Conforti, refuses to examine the facts—fully and openly—of the $8885 handed out to Handley and Thompson. There is no paper trail of the kind required by § 55-79.75.C. In fact there is no record of a Board vote to authorize these payments.
At the Board meeting last night Conforti said, "the matter is closed."
At the Board meeting last night Conforti said, "the matter is closed."
Board considering landscaping changes
At the Board meeting last night landscaping changes were discussed, and a decision made to ask the grounds maintenance company for recommendations.
We agree that landscaping in several areas has deteriorated, and that ad hoc changes detract from the overall look of Southampton.
What is needed is an update of the Master Plan. Perhaps this could be presented to homeowners at the next Annual Meeting.
We agree that landscaping in several areas has deteriorated, and that ad hoc changes detract from the overall look of Southampton.
What is needed is an update of the Master Plan. Perhaps this could be presented to homeowners at the next Annual Meeting.
Wednesday, March 12, 2008
Agenda packets still not available to homeowners
At the December 13, 2007 meeting the Board voted to put the agenda packets—required by § 55-79.75.B—on the Southampton website at the same time that Board members get their's. This has yet to be done.
Monday, March 10, 2008
Homeowners 10 to 1 against reimbursing legal fees
A poll conducted at this site shows homeowners are 10 to 1 against the Association paying for Thompson and Handley's legal expenses.
Saturday, March 8, 2008
$8885 unlawfully withdrawn from Association funds
Checks totaling $8885 were secretly issued to former Board member Julie Handley. More specifically:
1 - Julie Handley was issued three checks: #1711 on 8/17/06 for $3000 signed by Tom Patti and Casper; #1771 on 11/16/06 for $4085 signed by Tom Patti and Casper; #1818 on 1/25/07 for $1800 signed by Tom Patti and Casper.
2 - There is no invoice from Handley to the Association.
3 - There is no claim or justification for reimbursement filed by Handley with the Association.
4 - The minutes do not show that these disbursements were authorized by the Board—pursuant to § 55-79.75.C.
At the Annual Meeting, Association Counsel agreed that a new vote may be needed. He stated that the Board could vote at the meeting—they had the sole authority to settle claims against the Associaition.
Doing nothing is not an option—it leaves the current Board liable for the unlawful actions of others. The options open to the Board are:
1 - Vote to retroactively authorize these disbursements (upon receipt of an invoice and written claim).
2 - Recover the funds disbursed from Tom Patti / CMS Services.
A related issue is the recovery of the additional amount spent for the services of Association Counsel on behalf of Julie Handley and Lynn Thompson. The bottom line is that under Southampton Bylaws, Article VII, Section 1 the Association is not liable for Handley and Thompson's "individual willful misconduct or bad faith.”
1 - Julie Handley was issued three checks: #1711 on 8/17/06 for $3000 signed by Tom Patti and Casper; #1771 on 11/16/06 for $4085 signed by Tom Patti and Casper; #1818 on 1/25/07 for $1800 signed by Tom Patti and Casper.
2 - There is no invoice from Handley to the Association.
3 - There is no claim or justification for reimbursement filed by Handley with the Association.
4 - The minutes do not show that these disbursements were authorized by the Board—pursuant to § 55-79.75.C.
At the Annual Meeting, Association Counsel agreed that a new vote may be needed. He stated that the Board could vote at the meeting—they had the sole authority to settle claims against the Associaition.
Doing nothing is not an option—it leaves the current Board liable for the unlawful actions of others. The options open to the Board are:
1 - Vote to retroactively authorize these disbursements (upon receipt of an invoice and written claim).
2 - Recover the funds disbursed from Tom Patti / CMS Services.
A related issue is the recovery of the additional amount spent for the services of Association Counsel on behalf of Julie Handley and Lynn Thompson. The bottom line is that under Southampton Bylaws, Article VII, Section 1 the Association is not liable for Handley and Thompson's "individual willful misconduct or bad faith.”
Board continues to act in unlawful secrecy
At the February 14, 2008 meeting the Board convened in executive session to discuss "legal matters." As we've pointed out in the past, "legal matters" are not exempt from the open session requirement—see § 55-79.75.C.
Also, since the motion to convene in executive session did not "state specifically the purpose for the executive session", we have no way of knowing whether or not the Board restricted the consideration of matters during executive session to "only those purposes specifically exempted and stated in the motion"—see § 55-79.75.C.
Mr. Conforti, I understand that you are an attorney, and as the Chair of Southampton Condominium it is your duty to ensure that executive sessions conform to all requirements of the Virginia Condominium Act.
Also, since the motion to convene in executive session did not "state specifically the purpose for the executive session", we have no way of knowing whether or not the Board restricted the consideration of matters during executive session to "only those purposes specifically exempted and stated in the motion"—see § 55-79.75.C.
Mr. Conforti, I understand that you are an attorney, and as the Chair of Southampton Condominium it is your duty to ensure that executive sessions conform to all requirements of the Virginia Condominium Act.
Monday, March 3, 2008
Announcements
Have an announcement of interest to Southampton Condominium? Add your comment with name and contact information.
Friday, February 29, 2008
For sale, rent, etc
Have something to sell, rent, etc.? Just add your comment with name and contact information. When your ad has served its purpose, don't forget to delete it.
Thursday, February 28, 2008
A note to the auditor
Southampton Bylaws, Article XIII, Section 3 requires an annual audit of the books and records of the Association.
During this audit, do look into the checks (#1711, #1771, #1818) made out to former Board members Handley and Thompson.
Is there an invoice to the Association for these disbursements?
Is there documentation to support the payee's claim against the Association?
Is there lawful Board authorization (see § 55-79.75.C), noted in the minutes of Board meetings, for these disbursements?
During this audit, do look into the checks (#1711, #1771, #1818) made out to former Board members Handley and Thompson.
Is there an invoice to the Association for these disbursements?
Is there documentation to support the payee's claim against the Association?
Is there lawful Board authorization (see § 55-79.75.C), noted in the minutes of Board meetings, for these disbursements?
Board acts in unlawful secrecy
Under § 55-79.75.C the Board "may convene in executive session to consider personnel matters; consult with legal counsel; discuss and consider contracts, probable or pending litigation and matters involving violations of the condominium instruments or rules and regulations promulgated pursuant thereto for which a unit owner, his family members, tenants, guests or other invitees are responsible; or discuss and consider the personal liability of unit owners to the unit owners' association, upon the affirmative vote in an open meeting to assemble in executive session. The motion shall state specifically the purpose for the executive session."
Furthermore, "The executive organ shall restrict the consideration of matters during such portions of meetings to only those purposes specifically exempted and stated in the motion."
Following the executive session, the Board is required by § 55-79.75.C to reconvene in open meeting and take a "vote on such contract, motion or other action which shall have its substance reasonably identified in the open meeting." The Board must decide in open session what they discussed in executive session. Absent this, “No contract, motion or other action adopted, passed or agreed to in executive session shall become effective”.
The purpose of the executive session may be considered "specifically" stated, and the vote's "substance reasonably identified" if a third party, not present during the executive session, is able to act on the Board's decision by reading the minutes of the meeting.
Regarding the January 10, 2008 meeting, the minutes show that the Board failed to vote upon entering into executive session, "to discuss legal matters" does not qualify for executive session, and the vote following the executive session does not reasonably identify the substance of the "Resolution". Hence, pursuant to § 55-79.75.C, the "Resolution" is not effective.
Lastly, § 55-79.75.C says the Board "may convene in executive session"—it does not require it. Given that more than $9000 were improperly disbursed to former Board members Handley and Thompson, given the largest turnout at the Annual Meeting, resolving this matter openly would help to clear the air.
Furthermore, "The executive organ shall restrict the consideration of matters during such portions of meetings to only those purposes specifically exempted and stated in the motion."
Following the executive session, the Board is required by § 55-79.75.C to reconvene in open meeting and take a "vote on such contract, motion or other action which shall have its substance reasonably identified in the open meeting." The Board must decide in open session what they discussed in executive session. Absent this, “No contract, motion or other action adopted, passed or agreed to in executive session shall become effective”.
The purpose of the executive session may be considered "specifically" stated, and the vote's "substance reasonably identified" if a third party, not present during the executive session, is able to act on the Board's decision by reading the minutes of the meeting.
Regarding the January 10, 2008 meeting, the minutes show that the Board failed to vote upon entering into executive session, "to discuss legal matters" does not qualify for executive session, and the vote following the executive session does not reasonably identify the substance of the "Resolution". Hence, pursuant to § 55-79.75.C, the "Resolution" is not effective.
Lastly, § 55-79.75.C says the Board "may convene in executive session"—it does not require it. Given that more than $9000 were improperly disbursed to former Board members Handley and Thompson, given the largest turnout at the Annual Meeting, resolving this matter openly would help to clear the air.
Board stalls on recovery of funds
More than $9000 were given to former Board members Handley and Thompson without proper authorization by the Board. The Board needs to either properly authorize the funds, or to recover them for the Association.
§ 55-79.75.C states: "The executive organ or any subcommittee or other committee thereof may convene in executive session . . . upon the affirmative vote in an open meeting to assemble in executive session. The motion shall state specifically the purpose for the executive session. Reference to the motion and the stated purpose for the executive session shall be included in the minutes. The executive organ shall restrict the consideration of matters during such portions of meetings to only those purposes specifically exempted and stated in the motion. No contract, motion or other action adopted, passed or agreed to in executive session shall become effective unless the executive organ or subcommittee or other committee thereof, following the executive session, reconvenes in open meeting and takes a vote on such contract, motion or other action which shall have its substance reasonably identified in the open meeting."
Association minutes show that the Board neither stated "specifically the purpose for the executive session," nor did it reconvene in open session and "vote on such contract, motion or other action" with "its substance reasonably identified." Therefore, under Virginia law, the Board's action during this executive session is not "effective."
We've written about this issue several times, brought it up at the Annual Meeting, wrote again to the Board, and presented it at the January 10, 2008 Board meeting where Board member Dogan "suggested getting Mr. Mercer's legal opinion." The facts are clear, the law is clear, but the Board continues to stall.
§ 55-79.75.C states: "The executive organ or any subcommittee or other committee thereof may convene in executive session . . . upon the affirmative vote in an open meeting to assemble in executive session. The motion shall state specifically the purpose for the executive session. Reference to the motion and the stated purpose for the executive session shall be included in the minutes. The executive organ shall restrict the consideration of matters during such portions of meetings to only those purposes specifically exempted and stated in the motion. No contract, motion or other action adopted, passed or agreed to in executive session shall become effective unless the executive organ or subcommittee or other committee thereof, following the executive session, reconvenes in open meeting and takes a vote on such contract, motion or other action which shall have its substance reasonably identified in the open meeting."
Association minutes show that the Board neither stated "specifically the purpose for the executive session," nor did it reconvene in open session and "vote on such contract, motion or other action" with "its substance reasonably identified." Therefore, under Virginia law, the Board's action during this executive session is not "effective."
We've written about this issue several times, brought it up at the Annual Meeting, wrote again to the Board, and presented it at the January 10, 2008 Board meeting where Board member Dogan "suggested getting Mr. Mercer's legal opinion." The facts are clear, the law is clear, but the Board continues to stall.
Sunday, January 13, 2008
May the Board regulate the color of blinds?
The Southampton Condominium, Homeowners Manual (2007) states on page 12 the following with respect to blinds: "The side which shows to the exterior must be white or some shade of off white."
What homeowners do inside their homes is their own business—except to the extent that Southampton covenants state otherwise. The Homeowners Manual is not a part of the covenants, i.e the Declaration and Bylaws. The Homeowners Manual derives its authority from the covenants, and may only interpret or implement what is in the covenants or in applicable laws.
Our reading of Southampton covenants, specifically Bylaws Article X, Use Restrictions, and Article XI, Architectural Control, finds no authority therein for the Board to regulate the color of blinds.
We would like to hear from the Board as to why they believe they have the authority to regulate the color of blinds.
What homeowners do inside their homes is their own business—except to the extent that Southampton covenants state otherwise. The Homeowners Manual is not a part of the covenants, i.e the Declaration and Bylaws. The Homeowners Manual derives its authority from the covenants, and may only interpret or implement what is in the covenants or in applicable laws.
Our reading of Southampton covenants, specifically Bylaws Article X, Use Restrictions, and Article XI, Architectural Control, finds no authority therein for the Board to regulate the color of blinds.
We would like to hear from the Board as to why they believe they have the authority to regulate the color of blinds.
Saturday, January 12, 2008
'Individual willful misconduct or bad faith'
Southampton Bylaws, Article VII, Section 1 state: “The officers and Directors of the Association shall not be liable to the members of the Association for any mistake of judgement, negligence, or otherwise, except for their own individual willful misconduct or bad faith.”
Therefore, the issue is whether or not Thompson and Handley’s conduct on the evening of October 1, 2005 consitutes “individual willful misconduct or bad faith”—not whether they are guilty or innocent of the charges against them. While the Association’s attorney may advise the Board on the meaning of “individual willful misconduct or bad faith”, the Board must decide this issue.
An example may help clarify my argument. Suppose a Board member, without authorization from the Board and without notification to a homeowner, were to remove that homeowners bicyle from the common area and dump it somewhere. Would this consitute the Board member’s “own individual willful misconduct or bad faith”? Would the Association be liable?
At the January 10 meeting, Bob Dogan stated that Thompson and Handley’s witness saw a white truck carrying off the plants. We need to hear from this witness (not hearsay), from Thompson and Handley, and also from other witnesses. Other witnesses have provided the following statements:
Then there is the criminal case against Thompson and Handley. They were found not guilty—the prosecuting attorney was replaced about an hour before the trial, and half the witnesses were not called. They could be found guilty in a civil case where the standard of proof is lower.
However, neither Thompson and Handley’s guilt or innocence in criminal or civil cases, nor the witness statements regarding their conduct on the evening of January 10 are relevant—except to the extent that they bear on the issue of whether or not Thompson and Handley’s conduct on the evening of October 1, 2005 consituted “individual willful misconduct or bad faith”.
The April 14, 2005 minutes show that "Dogan asked if the Board has the authority to remove items that are on the common area. Association Counsel, Mr. Mercer, stated that yes, they were authorized to do this, however, firmly suggested that a picture should be taken first, then a letter written, and if no action was taken, then to remove the item(s), but not before advising the resident.” Thompson and Handley chose not to follow the attorney’s advice.
Ultimately, for the Board to reimburse Thompson and Handley for their legal expenses, the Board must decide whether or not the Association’s records, Thompson and Handley’s claim, and applicable covenants, prove that Thompson and Handley’s conduct on the evening of October 1, 2005 did not consitute “individual willful misconduct or bad faith”.
They should do this in a manner that is not only fair, but has the appearance of being fair—this is a precedent setting case for the Association, and it has generated a lot of interest. It is not the Association attorney's decision to make—it is a Board decision.
Lastly, since Association records do not show authorization for disbursement of funds to Thompson and Handley (the minutes of Board meeings do not show any such decision with its “substance reasonably identified in the open meeting” —§55-79.75.C), CMS Services may be liable to the Association for funds (checks #1711, #1771, #1818) improperly disbursed to Thompson and Handley.
Therefore, the issue is whether or not Thompson and Handley’s conduct on the evening of October 1, 2005 consitutes “individual willful misconduct or bad faith”—not whether they are guilty or innocent of the charges against them. While the Association’s attorney may advise the Board on the meaning of “individual willful misconduct or bad faith”, the Board must decide this issue.
An example may help clarify my argument. Suppose a Board member, without authorization from the Board and without notification to a homeowner, were to remove that homeowners bicyle from the common area and dump it somewhere. Would this consitute the Board member’s “own individual willful misconduct or bad faith”? Would the Association be liable?
At the January 10 meeting, Bob Dogan stated that Thompson and Handley’s witness saw a white truck carrying off the plants. We need to hear from this witness (not hearsay), from Thompson and Handley, and also from other witnesses. Other witnesses have provided the following statements:
Ron Graham (1663A): “noticed two ladies [Thompson and Handley] exiting the area between the hedges and windows of 1635A and carrying plants by the stems. I continued to watch the ladies put the plants in the back of a green pickup truck. . . . Lynn and Julie told the officers that the plants belonged to them.”
Myron Pierce'(1701B): “I saw a truck the color looks like it was green . . . A man was loading plants into the back of the truck.” [The man living at Handley’s. whom I spoke with several times, had a green truck.]
Enver Masud (1707B): On October 1 around 8:30 PM I observed Julie Handley and Lynn Thompson moving plants from area adjoining 1635A to Handley's place. They were at it until my return from a walk about half hour later. The Arlington County detective (Guevarra) assigned to the case told me that Handley claimed she was moving her own plants. I understand that at her trial the story changed.
Evelyn Troy (1705B): “when they traveled I watered their many lovely plants. . . . some of them were across the street . . . saddened to find out that more than half of those healthy and irreplaceable plants had been stolen.”
Nora Collins (1635A): “I have resided at 1635A . . . for two years come this April 1st 2006. Mrs. Devi Reddy approached me late one afternoon to request permission to put some of her plants in a mulched garden to the left of my condo unit. . . . I happily agreed to grant permission to her simple request. For several months Mrs. Reddy attended to all their care. . . . At no time did anyone in the condo complex inquire about the ownership of the plants nor complain to me about their presence in my side garden.”
Christine Kitchens (1629A): “I noticed that their garden had extended across the street . . . These plants also were being tended to and well taken care of by Devi and Ram. . . . I was very honored when they asked me to take care of their plants when they went on vacation August 26th - September 3rd, 2005.”
Then there is the criminal case against Thompson and Handley. They were found not guilty—the prosecuting attorney was replaced about an hour before the trial, and half the witnesses were not called. They could be found guilty in a civil case where the standard of proof is lower.
However, neither Thompson and Handley’s guilt or innocence in criminal or civil cases, nor the witness statements regarding their conduct on the evening of January 10 are relevant—except to the extent that they bear on the issue of whether or not Thompson and Handley’s conduct on the evening of October 1, 2005 consituted “individual willful misconduct or bad faith”.
The April 14, 2005 minutes show that "Dogan asked if the Board has the authority to remove items that are on the common area. Association Counsel, Mr. Mercer, stated that yes, they were authorized to do this, however, firmly suggested that a picture should be taken first, then a letter written, and if no action was taken, then to remove the item(s), but not before advising the resident.” Thompson and Handley chose not to follow the attorney’s advice.
Ultimately, for the Board to reimburse Thompson and Handley for their legal expenses, the Board must decide whether or not the Association’s records, Thompson and Handley’s claim, and applicable covenants, prove that Thompson and Handley’s conduct on the evening of October 1, 2005 did not consitute “individual willful misconduct or bad faith”.
They should do this in a manner that is not only fair, but has the appearance of being fair—this is a precedent setting case for the Association, and it has generated a lot of interest. It is not the Association attorney's decision to make—it is a Board decision.
Lastly, since Association records do not show authorization for disbursement of funds to Thompson and Handley (the minutes of Board meeings do not show any such decision with its “substance reasonably identified in the open meeting” —§55-79.75.C), CMS Services may be liable to the Association for funds (checks #1711, #1771, #1818) improperly disbursed to Thompson and Handley.
Thursday, January 10, 2008
Recovery of unauthorized expenditures by CMS
Association records show that CMS Services has spent about $9000 of Association funds (checks #1711, #1771, #1818) without Board authorization. The options before this Board are to either authorize this expense, or to recover the funds from CMS Services.
1 - The Board needs to act on this issue because the prior vote is not “effective” under Virginia law (at the Annual Meeting, Association Counsel Mercer agreed).
§ 55-79.75.C states: "The executive organ or any subcommittee or other committee thereof may convene in executive session . . . upon the affirmative vote in an open meeting to assemble in executive session. The motion shall state specifically the purpose for the executive session. Reference to the motion and the stated purpose for the executive session shall be included in the minutes. The executive organ shall restrict the consideration of matters during such portions of meetings to only those purposes specifically exempted and stated in the motion. No contract, motion or other action adopted, passed or agreed to in executive session shall become effective unless the executive organ or subcommittee or other committee thereof, following the executive session, reconvenes in open meeting and takes a vote on such contract, motion or other action which shall have its substance reasonably identified in the open meeting."
2 - The Board also needs a “claim” before it may satisfy a claim. There is no invoice to the Association in the record, and there is no justification from the claimants in the record. The Board needs to ask Thompson and Handley to file their claim with the Association.
3 - Prior to voting the Board needs to ascertain the facts. At least five witnesses (Nora Collins, Ron Graham, Christine Kitchens, Enver Masud, Evelyn Troy) dispute Thompson and Handley’s version. Only then can the Board properly determine whether or not the issue arose from Thompson and Handley's “own individual willful misconduct or bad faith” for which the Association is not liable—Southampton Bylaws, Article VII, Section 1.
4 - There are witnesses that claim that Mr. Mercer, in a conversation with the Reddys at the October 13, 2005 Annual Meeting stated that “the incident was not a Board matter”. Mr. Mercer has since reversed himself. Resolution of this issue also requires steps 2 and 3 above.
For more on this issue see Enver Masud’s letter .
1 - The Board needs to act on this issue because the prior vote is not “effective” under Virginia law (at the Annual Meeting, Association Counsel Mercer agreed).
§ 55-79.75.C states: "The executive organ or any subcommittee or other committee thereof may convene in executive session . . . upon the affirmative vote in an open meeting to assemble in executive session. The motion shall state specifically the purpose for the executive session. Reference to the motion and the stated purpose for the executive session shall be included in the minutes. The executive organ shall restrict the consideration of matters during such portions of meetings to only those purposes specifically exempted and stated in the motion. No contract, motion or other action adopted, passed or agreed to in executive session shall become effective unless the executive organ or subcommittee or other committee thereof, following the executive session, reconvenes in open meeting and takes a vote on such contract, motion or other action which shall have its substance reasonably identified in the open meeting."
2 - The Board also needs a “claim” before it may satisfy a claim. There is no invoice to the Association in the record, and there is no justification from the claimants in the record. The Board needs to ask Thompson and Handley to file their claim with the Association.
3 - Prior to voting the Board needs to ascertain the facts. At least five witnesses (Nora Collins, Ron Graham, Christine Kitchens, Enver Masud, Evelyn Troy) dispute Thompson and Handley’s version. Only then can the Board properly determine whether or not the issue arose from Thompson and Handley's “own individual willful misconduct or bad faith” for which the Association is not liable—Southampton Bylaws, Article VII, Section 1.
4 - There are witnesses that claim that Mr. Mercer, in a conversation with the Reddys at the October 13, 2005 Annual Meeting stated that “the incident was not a Board matter”. Mr. Mercer has since reversed himself. Resolution of this issue also requires steps 2 and 3 above.
For more on this issue see Enver Masud’s letter .
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