But instead of engaging in a tit-for-tat over who is circulating misinformation, I believe CA members should review the source documents for themselves. Though I haven't seen these documents, they might provide enough information for owners to draw their own conclusions about where the truth begins and ends.
Since the Board is making decisions based on these documents, and they belong to CA members, their availability to all members is in everyone's best interests. The documents you might ask for include:
- The letter of engagement with Foster Pepper, our second law firm (dates, and scope of work)
- The entire legal opinion(s) and letters they've received from their attorney that are being used for decision making (the entire document is needed in order to understand the full context)
- Written instructions provided to the attorney--in order to understand the legal opinion, you need to know the questions that were asked
An unanswered question
Since the Board didn't quite articulate the voting rights position I've put forward, and hasn't yet answered the core question I'm asking, I fear that I might not have clearly described my argument.
What our attorney argues is that the Board has a duty to determine how much of the LLCs acreage is allotted to its voting power. To date, neither the LLC nor the Board have answered this fundamental question: Why can the property owned by some members (e.g. garage units) be excluded from their voting powers, without an ability to apply this same rule to the LLCs property owned.
Just to clarify, this isn't the sole argument supporting the Board's authority to determine acreage. It is one of several arguments that tell a story about our governing documents and the CA's relationship to the LLC.
Guilty as charged
After rereading a few articles, I lower my head and humbly apologize for the occasional use of inflammatory language. In some cases, I have allowed emotion to seep into the message, which in some cases can be offensive to some members of the community. This language can also be a distraction from the facts and my arguments; and of course, it can become an obstacle to peaceful discussions in good faith. On this point, I bear some guilt and will do my best to rid this type of language from my writing. Keep in mind that I am human and passionate about the issues, so it is sometimes hard for me to recognize emotionally charged statements.
The low-down regarding lawsuits
As I've written, the Board was singled out as the single authority for solving voting rights and protecting the community from activities that are not in the best interest of owners, so our attorney wanted to make sure Board members understood their potential liabilities.
I realize this is uncomfortable, but a group of us believed we had justified reasons to question the Board's fiduciary duty last November. Our concerns pertained to the Board's support for a special meeting to (a) amend the covenants so the CA could buy "all or part" of the resort in the future, and (b) approve an adhoc increase in service fees for the LLC. The LLC had stated it would approve these motions using its voting power, and the pace of events created a sense of urgency.
The second reason for pressuring the Board was to help it defend against any attempt by the LLCs to assert its will on the Board. Right or wrong, our perception was that the LLC had a tendency to do this in order to serve its best interests. We wanted the Board to have constraints that the LLC couldn't control, and we wanted to raise the understanding of what "fidiary duty" really meant.
The threat of a suit, however unpleasant, was hoped to disrupt the status quo, and we believe it did. The consequence, we understood, would demonize us as individuals. I made an attempt to show our attorney's letter to a Board officer several days prior to its delivery. I wanted to talk him through it and try to minimize the visceral reaction by Board members, but he was unable to meet. What occurred after Board members received the letter was to be expected.
The notion of suing Board members was not considered a viable option. The suit that still is considered an option would not be against Board members, and wouldn't be pursued without broad community support (20+ members).
Proportional voting powers are required in order to have democracy and fairness. If not solved now, this issue might never be fixed. Owners have been frustrated over the LLCs interpretation of voting powers for years, but to date no one has had the wherewithal to challenge the status quo and see their challenge through to a final determination. In 2001, the CA Board negotiated with Glen on this issue, but made no progress. And in a 2009 letter from the CA President, he noted:
There are two issues that are not resolved and continue to be irritants to the community.
1> The easement rights....2> The individual voting rights based upon fractional ownership of acreage as outlined in the covenants.
The first time I learned about the unintended consequences resulting from our attorney's letter was the Board's recent letter. Both the LLC and the Board have complained that the threat of suit has restricted their communication. Presumably, this means they're equally concerned about legal action, and aren't doing things that are risky, but only they know what this effect actually is. If it's forcing slower, more conservative action, I'm OK with that.
A road to rational discourse
What we really need is for both the Board and the LLC to level with the community, put all the chips on the table for public review and comment, and give community members a real chance to weigh in on the big decisions that affect us. Opening up an honest and transparent dialog with the community is the easiest way to prevent misinformation. It's unfair for our volunteer representatives to carry the weight of solving our big problems, but they've been remiss in sharing the load. It's equally unfair to CA members to have so little, substantive information about the issues, and forcing us to speculate.
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