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.
Sunday, January 13, 2008
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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