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.
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