Post by leo on Dec 30, 2015 7:09:15 GMT
Below is my 3rd letter and document request to the GLA Board of Directors. Followed by the Communication Committee reply to my second letter, which is followed by my second request letter. This is a "LONG" posting - sorry :-(
Was I unclear in my second request?
To: GLA Board of Directors
cc: To provide for broader Member awareness, I am sending this to: info@glastonburylandownersforpositivechange.wordpress.com; nghilltopgroup@gmail.com; theirishpossee@gmail.com, glastonburylandownersgroup@gmail.com
I am sorry this letter is so long and there are so many questions, but the Communication Committee reply to me has raised some critical questions. I also want to address the Board authority, Covenant, and Bylaw issues raised by the Committee in enough detail so the attorney can quickly grasp the issues and respond to them.
On December 22, I received an e-mail from the Communication Committee in reply to my request for documents, copy attached. That reply first told me not to expect to receive copies of payment plan contracts because the Committee felt the spreadsheet provided under my first request “does fulfill the basic information you requested.” It went on to say “The Legal Committee will contact the GLA attorney to see if a copy of a private contract, such as a payment plan, is to be public knowledge.” This double speak concerns me, as does knowing over 100 comments and complaints filed with the GLA Board remain unanswered (per Communications Committee on 10/15/2015). In addition, at a Board meeting in August I heard the Board had been waiting 6 weeks to get comments from the GLA Attorney. I am not willing to wait many months, so I am relying on State law which requires the records to be provided in a short time, even if attorney review is desired.
I wonder why the attorney will be asked if the contracts can be accessed by Members when the spreadsheet I received contains most of the data about the debtors, but no data that could be used to show improper Board action. I believe the spreadsheet has been sanitized in order to prevent Members from determining the amount of money GLA has lost because of payment plan contracts.
Examples of problems in the spreadsheet include:
1) 17 names are listed, but only 8 indicate having signed contracts. Are the others getting special terms without even being on a contract?
2) No beginning debt is indicated for anyone, so total losses cannot be calculated.
3) Two names are listed with only the balance owed indicated.
4) One person signed a contract on 10/30/2010, another on 6/11/2009, and both still show as active, which is past the 5 year limit for Board signed contracts. What will happen here?
These are only a few of the irregularities in the spreadsheet.
On December 22, I sent the Board an e-mail asking to delay going to an attorney until I could properly present some questions I and many other Members have about payment plan contracts. A major reason for recommending a delay is the Dec 22nd reply I received stated the 18% interest required by Covenant 11.06 was frozen in the payment plan contracts, and this raises questions about the Board exceeding its authority, which I will present later in this letter.
I developed this letter to submit my third request for documents under State laws and to outline why I feel the Board is exceeding its authority. This letter is intended to be something the Board may present to an attorney. I do not expect the attorney to immediately respond to the Board authority question, but I do expect the Board to comply with the State statutes which will provide me access to the payment plan agreements and resolutions the Boards must have passed before signing off on them.
I ask for copies of or access to the agreements and resolutions by the Boards before January 8th.
I am relying on State law for access to records because the Board is not timely in responding to issues (i.e. over 100 unanswered issues) and often gives a clouded answer, such as what I received from the Communication Committee. I hope that, even if attorney consultation is desired by the Board, that it can be completed in the time allowed under statute 35-2-907.
I have many concerns about when the Board will grant me access to the payment plan contracts. However, I am more concerned that the question, or questions, the Legal Committee will be presenting to an attorney may really be asking what can be hidden from Members by looking at questions as though they come from the public, instead of asking how to best serve Member(s) of GLA and fulfill requests for information.
During various Board meetings, the Board has presented that the Directors are not public officials. The most recent reply to me stated, “The Legal Committee will contact the GLA attorney to see if a copy of a private contract, such as a payment plan, is to be public knowledge.” That causes me to wonder why the Communication Committee would advise the Legal Committee to ask the attorney to respond to me as a public person and not a Member of GLA?
I want to make clear that my previous requests for the same information were made as a Member of GLA, and using my status as a member of the public is not a legal defense for denying my request. Therefore, I am asking again, under State law, for copies of:
1) All payment plan contracts in the GLA records, both ongoing and closed;
2) Copies of minutes and resolutions passed by the Board approving entering into those contracts;
3) Copies of the Delinquent Account Reports for 2013, 2014, and 2015;
4) A copy of the 2012 Collections Policy and the minutes of the meeting that established it;
5) Communication Committee meeting minutes discussing and/or preparing the Dec. 22nd reply to me.
I believe that an attorney can be influenced toward providing the answer desired through the wording of the request for help. I hope the attitude presented to the attorney will be one that asks DOES THIS STATUTE ENABLE us to fulfill the member’s request for documents rather than DO WE HAVE TO provide the documents BECAUSE OF this statute. Please send me a CC of the request for assistance and advice from an attorney so that I do not need to go through another document request process to see the language of the request for attorney advice.
Even if the attorney recommends not providing the payment plan contracts, the meeting minutes and resolutions pertaining to these documents must be provided under State law 35-2-907 and 35-2-906(5)(c). This request qualifies for processing under State law 35-2-907 (3)(b) for my purpose of determining if past Board actions have violated our Covenants and if any past Board actions have exceeded its authority by entering into such contracts without a vote from the Membership. See Attached Document Request Form:
Since the specifics listed in my Dec. 17th request for documents were ignored, I will provide some detail of why they are important. However, before I begin providing specifics about my request for documents, I must ask how or when the Communication Committee became mind readers, able to determine the basic, and especially the critical, information I was seeking to find in the payment plan contracts. Their letter states in part, “The Communications Committee reviewed your first request and determined that the spreadsheet you received does fulfill the basic information you requested.” This reply was in response to my second request, which had a listing of specific information I wanted, but was not addressed by the Committee. Attempting to ignore my second request by reverting back to my first request, along with asserting the power to read my mind and make the decision of what I really want for me, is not unique for this Board. However, I hope the author of the letter did not mean to intentionally insult me in this way.
The Communication Committee reply to me states “you may not be aware, but when a landowner signs a payment plan contract, the ongoing 18% interest is frozen.” I hope that, through my document request, I will learn if any interpretation of our Covenants and Bylaws gives the Board of Directors authority to change GLA Covenants, specifically 11.06, and allows them to give away the funds that should be collected for the benefit of all Members.
This is no small matter and is certainly significant to Members.
Website www.timslife.com/gla/home04.html shows that, by freezing interest on only two of the 40+ delinquent accounts, the Board forgoes collecting over $35,000, and does so without any input from Members. This web site also references a Board action in late summer 2011, wherein the Board gave a landowner a $4,000 gift by waiving the interest and penalties due on assessments so as to enable the landowner to remove a lien so they could sell the property. What specifically gave the Board the authority to do so? And, if that actually occurred, that gift should have been paid to GLA through the escrow process rather than giving the landowner an additional $ 4,000 profit from the sale.
The Dec. 22nd Communication Committee e-mail response to my December 17th second request for documents appears to be an effort to provide minimal information and only information that would not be important if there is a challenge to the payment plan contract process. I found no reference to or acknowledgement of the meeting minutes or resolutions dealing with payment plan contracts, which I specifically asked for in my second request for documents. In addition, there were no references to my obtaining copies of Delinquent Accounts Reports for 2013, 2014 or 2015 in the Communication Committee reply. I believe that not providing the requested information violates State law. Therefore, I am considering whether or not to file a complaint with the Secretary of State and/or the Attorney General.
I hesitate to file a complaint with the State because I would have to include the spreadsheet I received and the Dec. 22nd e-mail from the Communication Committee. State awareness of Member concerns could be disastrous. State involvement can result in them looking at GLA books and records beyond just the payment plan contracts, which may result in significant corrections that GLA would be required to make. I fear that the Board, or some Directors, assumes they are part of an autonomous group rather than a group elected to serve as managers for the Members. Refusing to provide the documents I seek will drive me to involve the State of Montana in reviewing GLA Board actions.
I wonder if all members of the Communications Committee discussed my request and came to the decision to tell me the basics of my request had been fulfilled by the spreadsheet. I did not hear of a committee meeting being held to discuss my request, and I was never asked any questions about it by any member. I hope all Committee members did participate in the meeting to review my 2nd request and agreed to the e-mail I received. As a Committee of Directors, the Communication Committee is required to act in unison as a Committee. Article VI (B) states “Such Directors shall in all cases act as a Board.” If this was done, it will show in the minutes of the Committee meeting if they are properly recorded as required by Bylaw Article VI (I) “The provisions herein which govern meetings, actions at meetings, notice, waiver of notice, quorum and voting requirements of the Board also apply to Committees of Directors and their members.”
For all Board member awareness, I am concerned about the GLA Committee process, so I am asking for a copy of the minutes of the meeting that resulted in the Dec. 22nd e-mail. I hope those minutes were approved by the quorum of Directors required to hold the Committee meeting. Board members may not be aware that Bylaw Article VI mirrors the State statutes for establishing and operating committees. Statutes specific to my request for Committee meeting minutes include: 1) 35-2-433 enabling the Board to establish Committees, 2) 35-2-427 allowing Committee members to participate in meetings “through the use of any means of communication by which all directors participating may simultaneously hear each other”; and 3) 35-2-428 which allows Committees to take action without a physical meeting, but requires “The action must be evidenced by one or more written consents describing the action taken, be signed by each director, and be included in the minutes filed with the corporate records reflecting the action taken.”
As mentioned in the beginning, I hope to help the Legal Committee present questions and assure the attorney understands my reasons for citing certain laws as I request to get copies of payment agreement contracts, minutes of meetings, resolutions to enter into payment plan agreements, Accounts Receivable Reports, the 2012 Collection Policy, and the minutes of the meeting resulting in the Dec. 22nd response to me. I feel all of the following statutes, independently or combined, enable me, as a Member of GLA, to have access to and make copies of documents listed on the attached GLA Document Request form. I hope, as the attorney considers each statute and Bylaw and develops a response, he or she include specific judicial decisions that further define the State statutes as well as the major risks or challenges GLA may find within these statutes.
1. Bylaw Article VI (B)(13) which reads: “ Keep records in a good and businesslike manner of all assessments made, all expenditures and the status of each Members accounts and make such records accessible at reasonable times to all Members.”
2. State statute 35-2-907 (1) stating in critical part “… a member is entitled to inspect and copy, at a reasonable time and location specified by the corporation, any of the records of the corporation described in 35-2-906 (5) if the member gives the corporation written notice …” combined with the Late Assessment Payment Plans being an obligation of a member falling under 35-2-906 (5)(c) stating (c) resolutions adopted by its board of directors relating to the characteristics, qualifications, rights, limitations, and obligations of members or any class or category of members;”
The collection of the assessments under payment plan agreements change from being considered common assessments pertaining to all Members, to a specific contractual obligation the member accepts. The above mentioned statute speaks to resolutions passed and those resolutions must be in the minutes of the Board or Committee meeting with enough specificity to set the terms of a contract.
In reviewing the actions and obligations established while developing payment plan contracts, I hope it is clear in the minutes that the Directors acted properly as a Board under Article VI (B) “…. Such Directors shall in all cases act as a Board … and shall act by majority vote…” and none of the Directors who signing those contracts have put themselves, as individuals, in legal jeopardy. If there are no minutes or resolutions by the Board, there are numerous additional questions to be addressed.
In anticipation that the Board or the attorney may read Bylaw Article VI (B)(3) as empowering the Board to fix, levy, or collect an assessment for one individual that differs from what is assessed for others, I ask how the specific wording of “common charges and assessments to Members” can be interpreted to become individual charges or assessments?
3. State statute 35-2-907 (2) (a) specifically states “(2) Subject to subsection (5), a member is entitled to inspect and copy, at a reasonable time and reasonable location specified by the corporation, any of the following records of the corporation …” (b) accounting records of the corporation: The financial planning process for the 2016 GLA budget relies upon $10,000 income from payment plan contracts, which must therefore be part of the accounting records. There is no limit or restriction within this statute, so all records used to build the Quick Books system used by GLA must be made available.
Because I have not been provided copies of payment agreement contracts by the Board or from the Communications Committee, the number of unanswered questions has increased. My discussions with Members aware of my asking for these documents has raised some critical questions on authorities the Board holds, or think they hold. The questions I have, that seeing the payment plans and related resolutions should answer, but the Communications Committee did not use their “mind reading” abilities to discover, include:
1) What State statute, Covenant or Bylaw gives the Board authority to freeze interest rates clearly required in Covenant 11.06
2) What legal grounds does the Board have to enter into contracts with individuals owing money to GLA without an interest rate being applied to the debt?
3) What empowers the Board to take individual actions that cumulatively may deprive GLA of tens or hundreds of thousands of dollars?
4) Is it a violation of Bylaw Article VI(B)(2)(a) if the Board enters into a second payment plan contract because the first was not completed in 5 years?
5) What was the total debt, with interest applied, when the contracts were signed?
6) What is the allowed duration of each contract based on minimum payments being made?
7) What penalties does the Landowner face if regular payments are not made?
8) What is the process for terminating or cancelling the contract?
9) If no resolution was passed by the Board approving and entering payment agreement contracts, is the signatory personally liable?
10) What was the beginning date of each contract?
11) Do the contracts state what authority enables GLA to enter into the contract?
I have had numerous conversations with current and past Board members wherein they referenced Covenant 12.01 and stated that the Board was the Association or the Board had the power to grant waivers as a Corporation under State law 35-2-414. I believe the corporate powers of the Association are not unlimited under state law, but specifically defined and limited to our Articles of Incorporation, Article IV Powers (A-E).
I find nothing in the Articles which indicates the Board can change or ignore covenant requirements written with “express language” as required by Covenant 2.02. The Bylaws are subservient to the Covenants (i.e. “pursuant to the Declaration of Covenants”) and Bylaw Article XII (D) states the Covenants dominate in any conflict with the Bylaws. Therefore, I ask what legal document creates a corporate power or other legal instrument that enables the Board to make critical variance or waiver decisions under 12.01?
Covenant 12.01 Variances, Waivers reads: “The Association reserves the right to waive or grant variances to any of the provisions of this Declaration, where, in its discretion, it believes the same to be necessary and where the same will not be injurious to the rest of the Community.” If this is read to enable the Board to grant waivers or variances, it is in direct conflict with Covenant 2.05 which reads: 2.05 Amendments to Covenants “The covenants in this Declaration may be altered, amended, modified, waived, abandoned or terminated in whole or in part at any time by the affirmative vote of at least fifty-one percent (51%) of the Membership Interests of the Association.” An interpretation of 12.01 cannot be made by the Board to increase the power of the Board when that interpretation is in direct conflict with a more dominate and clearly stated covenant, 2.05. Can a legal document give two entities (i.e. Members and the Board) the same powers? Will that result in a teeter-totter covenant change process? Can the Board make an interpretation that gives it power over all other covenants?
I believe 2.05, being under the Nature and Effect section of the Covenants, dominates 12.01, which is under General Provisions, especially since 2.05 states all variances or waivers of the Covenants are to be voted on by the Membership. In addition, Covenant 2.03 cites a power given to the Board. This is a clear indication the covenants will specifically state when the Board will hold specific powers and those powers will be described within individual covenants. This ties in with Article VI (B) stating “may do all such acts or things as are not by law or by the Covenants, Bylaws or Articles of Incorporation directed to be exercised and done by the Members” I believe this defeats asserting the Board has broad powers when interpreting the Covenants.
If the Board has authority to act “as” the Association or be considered doing business for the Association under 12.01, they have unlimited power, and all covenants proceeding or following are meaningless. Can the Board exempt all Board members, or a group of Landowners from the responsibility for assessments, interest, and penalties? Do Covenants 1.03, 2.02, 2.03, 2.05, 3.01 and Bylaw Article VI (B) require 12.01 to be read as The Members reserves the right to waive or grant variances? If the Board operates under 12.01, what are the limits to the Board power that Members can rely upon?
I know of no legal structure giving two entities the same power in a single document. As presented above, that would be a legal nightmare. How is it justified to assume that Covenant 2.05, which uses specific language stating amendments and waivers of Covenants require a 51% vote from Members, be overridden by interpreting Covenant 12.01’s reference to “Association” as authorizing the Board to change or waive requirements of a Covenant? Can an interpretation be made by an entity attempting to gain power really supersede a direct reference with specific language? I offer that the intent of 12.01 was not to give more power to the Board, but rather to restate amendments and waivers can be done, and to quiet fears and give assurances to Members that waivers or variances must be “necessary” and would “not be injurious to the rest of the Community.”
I have been told that during the lawsuits with the O’Connell’s, the judge had upheld the Board’s use of 12.01. I did a complete and thorough review of all the documents in the O’Connell’s cases and found nothing in any document that asked the judge to determine if the Board had a legal basis to act as the Association under 12.01.
In court cases, a challenge only becomes an issue for the judge to decide if the question is asked of the judge, and it is debated between plaintiff and defendant. Said another way, I saw that the O’Connell’s challenged the process and decisions made, not the authority to make those decisions, and GLA attorneys defended the process, not the authority. I did see Judge Gilbert’s statement “The Covenants, at Section 12.01, provide that “the Association reserves the right to wave or grant variances to any of the provisions in this Declaration, where, in its discretion, it believes the same to be necessary and where the same will not be injurious to the rest of the Community. Etc.” She included “The GLA Board approved the variance under Section 4.2 of the Master Plan. The Board has discretion to approve or deny variance requests in accordance with Section 12.01 of the Covenants.”
However, both plaintiff and defendant had cited the Board having discretion under 12.01, and no challenge was made concerning Board authority under 12.01. She was not ruling on 12.01 since that was not a question before her. In addition, she cited the variance as being approved under Section 4.2 of the Master plan. In her decision, she made a clear statement showing 12.01 was not addressed in her findings. She stated “In any event, for the purposes of the pending summary judgment motion, the facts underlying the variance decision are not in dispute” i.e. authority under 12.01 was not questioned. Therefore, I believe the O’Connell’s lawsuits provide no helpful information in determining if the Board can act “as” the Association, or properly grant waivers or variances under 12.01.
I believe the most critical questions to ask attorneys are the following:
1) Who may grant variances and waivers under 12.01 and what process is required?
2) Does 12.01 give direct authority to the Board as the “Association?”
3) Can the Board be considered “doing the business or handling the affairs of the Association” and grant waivers under 12.01?
4) If the Board is doing business under 12.01, what are the guidelines or restrictions for granting waivers?
5) Is the language of 12.01, the definition of Association, and the expression of “Association” in 12.01 clear enough to apply Bylaw VI (B) as directing that waivers and variances be “directed to be exercised and done by the Members?”
6) Must the Members vote to establish policies, procedures, and limits to guide the Board in granting waivers and variances if the Board is to use 12.01 as part of doing business or handling the affairs of the Association?
In responding to these questions, I ask that the attorney specifically consider and address the following:
The covenant’s definition of Association at 3.01 and Articles of Incorporation Article V Membership clearly show the Members are the Association as the term is used throughout the Declaration of Covenants. This is further supported by the Covenant 1.03 statement “The Glastonbury Landowners Association, Inc. (hereinafter referred to as the “Association”) and many other covenants that use the term Association but obviously require a vote of Members. In addition, the Bylaws that creates the Board of Directors at Article VI (B) states “The business and affairs of the Association shall be managed by the Board of Directors.”
Next is the question of Board authority as they conduct the business and handle the affairs of the Association. I believe the Bylaws establish the Board of Directors as managers working for the Members and the Covenants set constraints and limits of the scope of work the Board may conduct before seeking Member approval to establish a Rule or Regulation. What separates the actions of accepting and processing an application to find compliance with covenants or setting assessment rates, from actions that reduce or increase obligations of individual members, especially if the action separates or divides Members into different groups with differing obligations, requirements, or constraints?
Bylaw Article VI (B) states in critical part “may do all such acts or things as are not by law or by the Covenants, Bylaws or Articles of Incorporation directed to be exercised and done by the Members.” A critical Covenant is the 2.02 statement, “In addition, each provision in this Declaration shall also be interpreted in the light of its express language, context and intent.” These two items, along with all the above, make it clear to me that action under 12.01 must be approved by a vote of the Membership. I would ask the attorney, where am I wrong?
If the attorney interprets 12.01 to allow the Board to grant variances and waivers, what constraints does the attorney feel limits their actions?
The final phrase of 12.01 saying, “where the same will not be injurious to the rest of the Community,” is not very definitive. Since 11.06 is currently a critical issue, I ask - if the interest required under 11.06 is a penalty, does defining it as a penalty make non-payment injurious to the rest of the Community, especially considering the large amount that has accumulated for some debtors? This is especially critical since all Members are aware of approximately $270,000.00 that has not been paid.
Some Members have asked my opinion about whether freezing the interest applied to late payments shifts the debt from being a past due assessment, to being a zero percent interest loan from GLA to the Member? This would be a major problem because Bylaw Article VIII (C) Loans reads, “No loans shall be contracted on behalf of the Association” In the financial world, does an offer to freeze the interest on a debt legally change it from an assessment to a loan?
As a related question, because liens are placed on the lands, does Montana’s Homestead law protect individuals or the land? If it protects the lands from foreclosure, does that force the Association to consider Assessment debts as unsecured debts? If it protects the individual, can the GLA wait until the lands change ownership to collect on the lien, especially since the lien runs with the land? How is GLA made whole again?
In an attempt to help the Board make future decisions that provide the most benefit to Members, I offer this thought. Consider the formation of GLA as following the principles of establishing a constitution. The U.S. Constitution and Montana State Constitution were developed by those living on or owning land ratifying an agreement (i.e. Constitution) of what they accept as limits, restrictions, and constraints to be placed upon them. Residents retained the power to amend their constitution and make the major decisions influencing their lives and the use and enjoyment of their property. Constitutions lay out the framework for representatives to make decisions for the mutual benefit of its members, just as our Articles of Incorporation establish GLA to be a mutual benefit corporation. Our Bylaws and the Declaration of Covenants were “ratified” by Landowners, just as constitutions are ratified.
One Member sent me this citation from historical documents and it may help all Board members. Nullification is the Jeffersonian idea that the landowners must judge (the constitutionality of) the acts of their agent, the GLA Board of Directors, since no impartial arbiter between them exists. When the agent, GLA Board of Directors, exercises a particular power not delegated to it, the landowners must refuse to allow its enforcement.
I interpret this as accurately expressing that the GLA Board does not lead the Membership, but rather follows and assists by doing only the duties assigned in the Covenants and Bylaws and accomplishing those tasks according to the limits placed therein.
The era of the Board of Directors being allowed to make major decisions for Landowners is over. When making decisions, the greatest challenge is to consider how the decision impacts the majority, not how well you do in responding to or fulfilling a request from one individual.
I hope this has been enlightening to the Board, especially to the new Members.
Thank You
Leo Keeler
The Communication Committee reply to my 2nd letter and document request:
Received December 22, 2016
Hi Leo & Dorothy Keeler,
The Board received your
second document request on December 17, listing additional information you wish to receive as you feel the spreadsheet provided to you in response to yourfirst request of November 9 was not complete.
The Communications Committee reviewed your first request and determined that the spreadsheet you received does fulfill the basic information you requested. You may not be aware,but when a landowner signs a payment plan contract, the ongoing 18% interest is frozen. They owe principle and all the interest accrued before the payment plan was signed, but future interest is frozen.
The Legal Committee will contact the GLA attorney to see if a copy of a private contract, such as a payment plan, is to be public knowledge.
Our Treasurer is out of the office until January 4th and won’t be able to compile the other information you are requesting.
The difference between the payment plan figure of $36,818.18 and the accounts receivable amount of $271,000 is attributed to the fact that many landowners with outstanding debt are not on a payment plan. The association has tried to collect this debt across the years to no avail. It is for this reason we have proposed a change in the governing documents that spells out the process to give the board more options for collection.
The Finance Committee (the new name of the combined Budget and Collections Committees) will meet in January and is expected to take up the issue of outstanding debt and collections of past due assessments.
The date for this Finance Committee meeting has not yet been set but will be announced on the website calendar and by email when it is.
Please contact the GLA Board via info@glamontana.org if you have further questions or concerns.
Thank you,
The Communications
Committee
Ticket: glamontana.freshdesk.com/helpdesk/tickets/381
The 2nd letter I sent and what the Committee was replying to:
To: Rudy and/or Karleen
To provide for broader Member awareness and distribution, I am sending this to: info@glastonburylandownersforpositivechange.wordpress.com; nghilltopgroup@gmail.com; theirishpossee@gmail.com
Thanks you for sending me the Excel spread sheet with portions of the information I had hoped to see when I reviewed the actual late assessment payment plans I had requested back on November 9th. Unfortunately this spread sheet is greatly lacking the critical information of: 1) beginning amounts as calculated per Covenant 11.06; 2) interest rate to be applied to the beginning amount and through the life of the contract, and 3) anticipated length of the contract. Information I felt was commonly known as critical to any contract interpretation and information I was seeking. Unfortunately during the Board meeting on Dec. 7, I was lured into accepting that the information I sought, and more, would be delivered in the spread sheet.
Since these three critical items were not included, I now feel disrespected and basically lied to. However, I am willing to allow the Board two options to fulfill my original request. 1) Complete the spreadsheet by inserting the following: a; total assessments, with interest, due when the contract was signed; b) interest rates used to calculate the total amount due for each debt before signing; c) interest rate for each contract; d) years and amounts of assessments not paid and e. duration of each contract based on minimum payments to be made. Option number 2 is to process the document request below that is being made based on State Law. Because my original request was made November 9, I must ask that the time line stated under State law become the deadline for responding to either option 1 or 2.
So that all Board members know, I was shocked to see the balance due column of the spreadsheet total showed only $36,818.18 remaining due to GLA from late assessment payments. There have been numerous discussions at Board meetings about past due assessments, indicating over $271,000 was owed to GLA from late assessments. The $271,000 is shown in Accounts Receivable on the Balance Sheet dated November 30, 2015, which was presented to Members at the December 7, 2015 Board Meeting. Since $36,818 is all that is on payment plans, then approximately $234,000 is outstanding debt that has grown through many years, and apparently has never been pursued.
Unfortunately I must believe there is an effort underway to hide what interest rates are used to calculate late assessment debts, the interest rate for each individual late payment plan and the time line required to pay off the debt.
However, I am willing to accept the spreadsheet being corrected and sent to me again as long as it is done within the time line allowed to fulfill the document request filed under State law, which is below. To assure I am following GLA’s policies, I submit the Document Request below under State law 35-2-907 stating in critical part “a member is entitled to inspect and copy, at a reasonable time and location specified by the corporation, any of the records of the corporation described in 35-2-906(5)” and State Law 35-2-906(5)(c) which states “(5) A corporation shall keep a copy of the following records at its principal office or a location from which the records may be recovered within 2 business days: (c) resolutions adopted by its board of directors relating to the characteristics, qualifications, rights, limitations and obligations of members or any class or category of members;” (emphasis added)
In this document request under State law, i am specifically asking for copies of the actual contracts signed, the minutes of meetings and any other documents pertaining to resolutions passed by the Board enabling or discussing entering into late assessment payment plans, agreements or other obligations between the Association and a Member.
In order to understand the scope and rate of increase of this $ 234,000+ debt, I am including a second document request for the 2013, 2014, and 2015 Annual Delinquent Accounts report required by the GLA Assessment Policy. The form necessary to receive those reports is shown below.
Was I unclear in my second request?
To: GLA Board of Directors
cc: To provide for broader Member awareness, I am sending this to: info@glastonburylandownersforpositivechange.wordpress.com; nghilltopgroup@gmail.com; theirishpossee@gmail.com, glastonburylandownersgroup@gmail.com
I am sorry this letter is so long and there are so many questions, but the Communication Committee reply to me has raised some critical questions. I also want to address the Board authority, Covenant, and Bylaw issues raised by the Committee in enough detail so the attorney can quickly grasp the issues and respond to them.
On December 22, I received an e-mail from the Communication Committee in reply to my request for documents, copy attached. That reply first told me not to expect to receive copies of payment plan contracts because the Committee felt the spreadsheet provided under my first request “does fulfill the basic information you requested.” It went on to say “The Legal Committee will contact the GLA attorney to see if a copy of a private contract, such as a payment plan, is to be public knowledge.” This double speak concerns me, as does knowing over 100 comments and complaints filed with the GLA Board remain unanswered (per Communications Committee on 10/15/2015). In addition, at a Board meeting in August I heard the Board had been waiting 6 weeks to get comments from the GLA Attorney. I am not willing to wait many months, so I am relying on State law which requires the records to be provided in a short time, even if attorney review is desired.
I wonder why the attorney will be asked if the contracts can be accessed by Members when the spreadsheet I received contains most of the data about the debtors, but no data that could be used to show improper Board action. I believe the spreadsheet has been sanitized in order to prevent Members from determining the amount of money GLA has lost because of payment plan contracts.
Examples of problems in the spreadsheet include:
1) 17 names are listed, but only 8 indicate having signed contracts. Are the others getting special terms without even being on a contract?
2) No beginning debt is indicated for anyone, so total losses cannot be calculated.
3) Two names are listed with only the balance owed indicated.
4) One person signed a contract on 10/30/2010, another on 6/11/2009, and both still show as active, which is past the 5 year limit for Board signed contracts. What will happen here?
These are only a few of the irregularities in the spreadsheet.
On December 22, I sent the Board an e-mail asking to delay going to an attorney until I could properly present some questions I and many other Members have about payment plan contracts. A major reason for recommending a delay is the Dec 22nd reply I received stated the 18% interest required by Covenant 11.06 was frozen in the payment plan contracts, and this raises questions about the Board exceeding its authority, which I will present later in this letter.
I developed this letter to submit my third request for documents under State laws and to outline why I feel the Board is exceeding its authority. This letter is intended to be something the Board may present to an attorney. I do not expect the attorney to immediately respond to the Board authority question, but I do expect the Board to comply with the State statutes which will provide me access to the payment plan agreements and resolutions the Boards must have passed before signing off on them.
I ask for copies of or access to the agreements and resolutions by the Boards before January 8th.
I am relying on State law for access to records because the Board is not timely in responding to issues (i.e. over 100 unanswered issues) and often gives a clouded answer, such as what I received from the Communication Committee. I hope that, even if attorney consultation is desired by the Board, that it can be completed in the time allowed under statute 35-2-907.
I have many concerns about when the Board will grant me access to the payment plan contracts. However, I am more concerned that the question, or questions, the Legal Committee will be presenting to an attorney may really be asking what can be hidden from Members by looking at questions as though they come from the public, instead of asking how to best serve Member(s) of GLA and fulfill requests for information.
During various Board meetings, the Board has presented that the Directors are not public officials. The most recent reply to me stated, “The Legal Committee will contact the GLA attorney to see if a copy of a private contract, such as a payment plan, is to be public knowledge.” That causes me to wonder why the Communication Committee would advise the Legal Committee to ask the attorney to respond to me as a public person and not a Member of GLA?
I want to make clear that my previous requests for the same information were made as a Member of GLA, and using my status as a member of the public is not a legal defense for denying my request. Therefore, I am asking again, under State law, for copies of:
1) All payment plan contracts in the GLA records, both ongoing and closed;
2) Copies of minutes and resolutions passed by the Board approving entering into those contracts;
3) Copies of the Delinquent Account Reports for 2013, 2014, and 2015;
4) A copy of the 2012 Collections Policy and the minutes of the meeting that established it;
5) Communication Committee meeting minutes discussing and/or preparing the Dec. 22nd reply to me.
I believe that an attorney can be influenced toward providing the answer desired through the wording of the request for help. I hope the attitude presented to the attorney will be one that asks DOES THIS STATUTE ENABLE us to fulfill the member’s request for documents rather than DO WE HAVE TO provide the documents BECAUSE OF this statute. Please send me a CC of the request for assistance and advice from an attorney so that I do not need to go through another document request process to see the language of the request for attorney advice.
Even if the attorney recommends not providing the payment plan contracts, the meeting minutes and resolutions pertaining to these documents must be provided under State law 35-2-907 and 35-2-906(5)(c). This request qualifies for processing under State law 35-2-907 (3)(b) for my purpose of determining if past Board actions have violated our Covenants and if any past Board actions have exceeded its authority by entering into such contracts without a vote from the Membership. See Attached Document Request Form:
Since the specifics listed in my Dec. 17th request for documents were ignored, I will provide some detail of why they are important. However, before I begin providing specifics about my request for documents, I must ask how or when the Communication Committee became mind readers, able to determine the basic, and especially the critical, information I was seeking to find in the payment plan contracts. Their letter states in part, “The Communications Committee reviewed your first request and determined that the spreadsheet you received does fulfill the basic information you requested.” This reply was in response to my second request, which had a listing of specific information I wanted, but was not addressed by the Committee. Attempting to ignore my second request by reverting back to my first request, along with asserting the power to read my mind and make the decision of what I really want for me, is not unique for this Board. However, I hope the author of the letter did not mean to intentionally insult me in this way.
The Communication Committee reply to me states “you may not be aware, but when a landowner signs a payment plan contract, the ongoing 18% interest is frozen.” I hope that, through my document request, I will learn if any interpretation of our Covenants and Bylaws gives the Board of Directors authority to change GLA Covenants, specifically 11.06, and allows them to give away the funds that should be collected for the benefit of all Members.
This is no small matter and is certainly significant to Members.
Website www.timslife.com/gla/home04.html shows that, by freezing interest on only two of the 40+ delinquent accounts, the Board forgoes collecting over $35,000, and does so without any input from Members. This web site also references a Board action in late summer 2011, wherein the Board gave a landowner a $4,000 gift by waiving the interest and penalties due on assessments so as to enable the landowner to remove a lien so they could sell the property. What specifically gave the Board the authority to do so? And, if that actually occurred, that gift should have been paid to GLA through the escrow process rather than giving the landowner an additional $ 4,000 profit from the sale.
The Dec. 22nd Communication Committee e-mail response to my December 17th second request for documents appears to be an effort to provide minimal information and only information that would not be important if there is a challenge to the payment plan contract process. I found no reference to or acknowledgement of the meeting minutes or resolutions dealing with payment plan contracts, which I specifically asked for in my second request for documents. In addition, there were no references to my obtaining copies of Delinquent Accounts Reports for 2013, 2014 or 2015 in the Communication Committee reply. I believe that not providing the requested information violates State law. Therefore, I am considering whether or not to file a complaint with the Secretary of State and/or the Attorney General.
I hesitate to file a complaint with the State because I would have to include the spreadsheet I received and the Dec. 22nd e-mail from the Communication Committee. State awareness of Member concerns could be disastrous. State involvement can result in them looking at GLA books and records beyond just the payment plan contracts, which may result in significant corrections that GLA would be required to make. I fear that the Board, or some Directors, assumes they are part of an autonomous group rather than a group elected to serve as managers for the Members. Refusing to provide the documents I seek will drive me to involve the State of Montana in reviewing GLA Board actions.
I wonder if all members of the Communications Committee discussed my request and came to the decision to tell me the basics of my request had been fulfilled by the spreadsheet. I did not hear of a committee meeting being held to discuss my request, and I was never asked any questions about it by any member. I hope all Committee members did participate in the meeting to review my 2nd request and agreed to the e-mail I received. As a Committee of Directors, the Communication Committee is required to act in unison as a Committee. Article VI (B) states “Such Directors shall in all cases act as a Board.” If this was done, it will show in the minutes of the Committee meeting if they are properly recorded as required by Bylaw Article VI (I) “The provisions herein which govern meetings, actions at meetings, notice, waiver of notice, quorum and voting requirements of the Board also apply to Committees of Directors and their members.”
For all Board member awareness, I am concerned about the GLA Committee process, so I am asking for a copy of the minutes of the meeting that resulted in the Dec. 22nd e-mail. I hope those minutes were approved by the quorum of Directors required to hold the Committee meeting. Board members may not be aware that Bylaw Article VI mirrors the State statutes for establishing and operating committees. Statutes specific to my request for Committee meeting minutes include: 1) 35-2-433 enabling the Board to establish Committees, 2) 35-2-427 allowing Committee members to participate in meetings “through the use of any means of communication by which all directors participating may simultaneously hear each other”; and 3) 35-2-428 which allows Committees to take action without a physical meeting, but requires “The action must be evidenced by one or more written consents describing the action taken, be signed by each director, and be included in the minutes filed with the corporate records reflecting the action taken.”
As mentioned in the beginning, I hope to help the Legal Committee present questions and assure the attorney understands my reasons for citing certain laws as I request to get copies of payment agreement contracts, minutes of meetings, resolutions to enter into payment plan agreements, Accounts Receivable Reports, the 2012 Collection Policy, and the minutes of the meeting resulting in the Dec. 22nd response to me. I feel all of the following statutes, independently or combined, enable me, as a Member of GLA, to have access to and make copies of documents listed on the attached GLA Document Request form. I hope, as the attorney considers each statute and Bylaw and develops a response, he or she include specific judicial decisions that further define the State statutes as well as the major risks or challenges GLA may find within these statutes.
1. Bylaw Article VI (B)(13) which reads: “ Keep records in a good and businesslike manner of all assessments made, all expenditures and the status of each Members accounts and make such records accessible at reasonable times to all Members.”
2. State statute 35-2-907 (1) stating in critical part “… a member is entitled to inspect and copy, at a reasonable time and location specified by the corporation, any of the records of the corporation described in 35-2-906 (5) if the member gives the corporation written notice …” combined with the Late Assessment Payment Plans being an obligation of a member falling under 35-2-906 (5)(c) stating (c) resolutions adopted by its board of directors relating to the characteristics, qualifications, rights, limitations, and obligations of members or any class or category of members;”
The collection of the assessments under payment plan agreements change from being considered common assessments pertaining to all Members, to a specific contractual obligation the member accepts. The above mentioned statute speaks to resolutions passed and those resolutions must be in the minutes of the Board or Committee meeting with enough specificity to set the terms of a contract.
In reviewing the actions and obligations established while developing payment plan contracts, I hope it is clear in the minutes that the Directors acted properly as a Board under Article VI (B) “…. Such Directors shall in all cases act as a Board … and shall act by majority vote…” and none of the Directors who signing those contracts have put themselves, as individuals, in legal jeopardy. If there are no minutes or resolutions by the Board, there are numerous additional questions to be addressed.
In anticipation that the Board or the attorney may read Bylaw Article VI (B)(3) as empowering the Board to fix, levy, or collect an assessment for one individual that differs from what is assessed for others, I ask how the specific wording of “common charges and assessments to Members” can be interpreted to become individual charges or assessments?
3. State statute 35-2-907 (2) (a) specifically states “(2) Subject to subsection (5), a member is entitled to inspect and copy, at a reasonable time and reasonable location specified by the corporation, any of the following records of the corporation …” (b) accounting records of the corporation: The financial planning process for the 2016 GLA budget relies upon $10,000 income from payment plan contracts, which must therefore be part of the accounting records. There is no limit or restriction within this statute, so all records used to build the Quick Books system used by GLA must be made available.
Because I have not been provided copies of payment agreement contracts by the Board or from the Communications Committee, the number of unanswered questions has increased. My discussions with Members aware of my asking for these documents has raised some critical questions on authorities the Board holds, or think they hold. The questions I have, that seeing the payment plans and related resolutions should answer, but the Communications Committee did not use their “mind reading” abilities to discover, include:
1) What State statute, Covenant or Bylaw gives the Board authority to freeze interest rates clearly required in Covenant 11.06
2) What legal grounds does the Board have to enter into contracts with individuals owing money to GLA without an interest rate being applied to the debt?
3) What empowers the Board to take individual actions that cumulatively may deprive GLA of tens or hundreds of thousands of dollars?
4) Is it a violation of Bylaw Article VI(B)(2)(a) if the Board enters into a second payment plan contract because the first was not completed in 5 years?
5) What was the total debt, with interest applied, when the contracts were signed?
6) What is the allowed duration of each contract based on minimum payments being made?
7) What penalties does the Landowner face if regular payments are not made?
8) What is the process for terminating or cancelling the contract?
9) If no resolution was passed by the Board approving and entering payment agreement contracts, is the signatory personally liable?
10) What was the beginning date of each contract?
11) Do the contracts state what authority enables GLA to enter into the contract?
I have had numerous conversations with current and past Board members wherein they referenced Covenant 12.01 and stated that the Board was the Association or the Board had the power to grant waivers as a Corporation under State law 35-2-414. I believe the corporate powers of the Association are not unlimited under state law, but specifically defined and limited to our Articles of Incorporation, Article IV Powers (A-E).
I find nothing in the Articles which indicates the Board can change or ignore covenant requirements written with “express language” as required by Covenant 2.02. The Bylaws are subservient to the Covenants (i.e. “pursuant to the Declaration of Covenants”) and Bylaw Article XII (D) states the Covenants dominate in any conflict with the Bylaws. Therefore, I ask what legal document creates a corporate power or other legal instrument that enables the Board to make critical variance or waiver decisions under 12.01?
Covenant 12.01 Variances, Waivers reads: “The Association reserves the right to waive or grant variances to any of the provisions of this Declaration, where, in its discretion, it believes the same to be necessary and where the same will not be injurious to the rest of the Community.” If this is read to enable the Board to grant waivers or variances, it is in direct conflict with Covenant 2.05 which reads: 2.05 Amendments to Covenants “The covenants in this Declaration may be altered, amended, modified, waived, abandoned or terminated in whole or in part at any time by the affirmative vote of at least fifty-one percent (51%) of the Membership Interests of the Association.” An interpretation of 12.01 cannot be made by the Board to increase the power of the Board when that interpretation is in direct conflict with a more dominate and clearly stated covenant, 2.05. Can a legal document give two entities (i.e. Members and the Board) the same powers? Will that result in a teeter-totter covenant change process? Can the Board make an interpretation that gives it power over all other covenants?
I believe 2.05, being under the Nature and Effect section of the Covenants, dominates 12.01, which is under General Provisions, especially since 2.05 states all variances or waivers of the Covenants are to be voted on by the Membership. In addition, Covenant 2.03 cites a power given to the Board. This is a clear indication the covenants will specifically state when the Board will hold specific powers and those powers will be described within individual covenants. This ties in with Article VI (B) stating “may do all such acts or things as are not by law or by the Covenants, Bylaws or Articles of Incorporation directed to be exercised and done by the Members” I believe this defeats asserting the Board has broad powers when interpreting the Covenants.
If the Board has authority to act “as” the Association or be considered doing business for the Association under 12.01, they have unlimited power, and all covenants proceeding or following are meaningless. Can the Board exempt all Board members, or a group of Landowners from the responsibility for assessments, interest, and penalties? Do Covenants 1.03, 2.02, 2.03, 2.05, 3.01 and Bylaw Article VI (B) require 12.01 to be read as The Members reserves the right to waive or grant variances? If the Board operates under 12.01, what are the limits to the Board power that Members can rely upon?
I know of no legal structure giving two entities the same power in a single document. As presented above, that would be a legal nightmare. How is it justified to assume that Covenant 2.05, which uses specific language stating amendments and waivers of Covenants require a 51% vote from Members, be overridden by interpreting Covenant 12.01’s reference to “Association” as authorizing the Board to change or waive requirements of a Covenant? Can an interpretation be made by an entity attempting to gain power really supersede a direct reference with specific language? I offer that the intent of 12.01 was not to give more power to the Board, but rather to restate amendments and waivers can be done, and to quiet fears and give assurances to Members that waivers or variances must be “necessary” and would “not be injurious to the rest of the Community.”
I have been told that during the lawsuits with the O’Connell’s, the judge had upheld the Board’s use of 12.01. I did a complete and thorough review of all the documents in the O’Connell’s cases and found nothing in any document that asked the judge to determine if the Board had a legal basis to act as the Association under 12.01.
In court cases, a challenge only becomes an issue for the judge to decide if the question is asked of the judge, and it is debated between plaintiff and defendant. Said another way, I saw that the O’Connell’s challenged the process and decisions made, not the authority to make those decisions, and GLA attorneys defended the process, not the authority. I did see Judge Gilbert’s statement “The Covenants, at Section 12.01, provide that “the Association reserves the right to wave or grant variances to any of the provisions in this Declaration, where, in its discretion, it believes the same to be necessary and where the same will not be injurious to the rest of the Community. Etc.” She included “The GLA Board approved the variance under Section 4.2 of the Master Plan. The Board has discretion to approve or deny variance requests in accordance with Section 12.01 of the Covenants.”
However, both plaintiff and defendant had cited the Board having discretion under 12.01, and no challenge was made concerning Board authority under 12.01. She was not ruling on 12.01 since that was not a question before her. In addition, she cited the variance as being approved under Section 4.2 of the Master plan. In her decision, she made a clear statement showing 12.01 was not addressed in her findings. She stated “In any event, for the purposes of the pending summary judgment motion, the facts underlying the variance decision are not in dispute” i.e. authority under 12.01 was not questioned. Therefore, I believe the O’Connell’s lawsuits provide no helpful information in determining if the Board can act “as” the Association, or properly grant waivers or variances under 12.01.
I believe the most critical questions to ask attorneys are the following:
1) Who may grant variances and waivers under 12.01 and what process is required?
2) Does 12.01 give direct authority to the Board as the “Association?”
3) Can the Board be considered “doing the business or handling the affairs of the Association” and grant waivers under 12.01?
4) If the Board is doing business under 12.01, what are the guidelines or restrictions for granting waivers?
5) Is the language of 12.01, the definition of Association, and the expression of “Association” in 12.01 clear enough to apply Bylaw VI (B) as directing that waivers and variances be “directed to be exercised and done by the Members?”
6) Must the Members vote to establish policies, procedures, and limits to guide the Board in granting waivers and variances if the Board is to use 12.01 as part of doing business or handling the affairs of the Association?
In responding to these questions, I ask that the attorney specifically consider and address the following:
The covenant’s definition of Association at 3.01 and Articles of Incorporation Article V Membership clearly show the Members are the Association as the term is used throughout the Declaration of Covenants. This is further supported by the Covenant 1.03 statement “The Glastonbury Landowners Association, Inc. (hereinafter referred to as the “Association”) and many other covenants that use the term Association but obviously require a vote of Members. In addition, the Bylaws that creates the Board of Directors at Article VI (B) states “The business and affairs of the Association shall be managed by the Board of Directors.”
Next is the question of Board authority as they conduct the business and handle the affairs of the Association. I believe the Bylaws establish the Board of Directors as managers working for the Members and the Covenants set constraints and limits of the scope of work the Board may conduct before seeking Member approval to establish a Rule or Regulation. What separates the actions of accepting and processing an application to find compliance with covenants or setting assessment rates, from actions that reduce or increase obligations of individual members, especially if the action separates or divides Members into different groups with differing obligations, requirements, or constraints?
Bylaw Article VI (B) states in critical part “may do all such acts or things as are not by law or by the Covenants, Bylaws or Articles of Incorporation directed to be exercised and done by the Members.” A critical Covenant is the 2.02 statement, “In addition, each provision in this Declaration shall also be interpreted in the light of its express language, context and intent.” These two items, along with all the above, make it clear to me that action under 12.01 must be approved by a vote of the Membership. I would ask the attorney, where am I wrong?
If the attorney interprets 12.01 to allow the Board to grant variances and waivers, what constraints does the attorney feel limits their actions?
The final phrase of 12.01 saying, “where the same will not be injurious to the rest of the Community,” is not very definitive. Since 11.06 is currently a critical issue, I ask - if the interest required under 11.06 is a penalty, does defining it as a penalty make non-payment injurious to the rest of the Community, especially considering the large amount that has accumulated for some debtors? This is especially critical since all Members are aware of approximately $270,000.00 that has not been paid.
Some Members have asked my opinion about whether freezing the interest applied to late payments shifts the debt from being a past due assessment, to being a zero percent interest loan from GLA to the Member? This would be a major problem because Bylaw Article VIII (C) Loans reads, “No loans shall be contracted on behalf of the Association” In the financial world, does an offer to freeze the interest on a debt legally change it from an assessment to a loan?
As a related question, because liens are placed on the lands, does Montana’s Homestead law protect individuals or the land? If it protects the lands from foreclosure, does that force the Association to consider Assessment debts as unsecured debts? If it protects the individual, can the GLA wait until the lands change ownership to collect on the lien, especially since the lien runs with the land? How is GLA made whole again?
In an attempt to help the Board make future decisions that provide the most benefit to Members, I offer this thought. Consider the formation of GLA as following the principles of establishing a constitution. The U.S. Constitution and Montana State Constitution were developed by those living on or owning land ratifying an agreement (i.e. Constitution) of what they accept as limits, restrictions, and constraints to be placed upon them. Residents retained the power to amend their constitution and make the major decisions influencing their lives and the use and enjoyment of their property. Constitutions lay out the framework for representatives to make decisions for the mutual benefit of its members, just as our Articles of Incorporation establish GLA to be a mutual benefit corporation. Our Bylaws and the Declaration of Covenants were “ratified” by Landowners, just as constitutions are ratified.
One Member sent me this citation from historical documents and it may help all Board members. Nullification is the Jeffersonian idea that the landowners must judge (the constitutionality of) the acts of their agent, the GLA Board of Directors, since no impartial arbiter between them exists. When the agent, GLA Board of Directors, exercises a particular power not delegated to it, the landowners must refuse to allow its enforcement.
I interpret this as accurately expressing that the GLA Board does not lead the Membership, but rather follows and assists by doing only the duties assigned in the Covenants and Bylaws and accomplishing those tasks according to the limits placed therein.
The era of the Board of Directors being allowed to make major decisions for Landowners is over. When making decisions, the greatest challenge is to consider how the decision impacts the majority, not how well you do in responding to or fulfilling a request from one individual.
I hope this has been enlightening to the Board, especially to the new Members.
Thank You
Leo Keeler
The Communication Committee reply to my 2nd letter and document request:
Received December 22, 2016
Hi Leo & Dorothy Keeler,
The Board received your
second document request on December 17, listing additional information you wish to receive as you feel the spreadsheet provided to you in response to yourfirst request of November 9 was not complete.
The Communications Committee reviewed your first request and determined that the spreadsheet you received does fulfill the basic information you requested. You may not be aware,but when a landowner signs a payment plan contract, the ongoing 18% interest is frozen. They owe principle and all the interest accrued before the payment plan was signed, but future interest is frozen.
The Legal Committee will contact the GLA attorney to see if a copy of a private contract, such as a payment plan, is to be public knowledge.
Our Treasurer is out of the office until January 4th and won’t be able to compile the other information you are requesting.
The difference between the payment plan figure of $36,818.18 and the accounts receivable amount of $271,000 is attributed to the fact that many landowners with outstanding debt are not on a payment plan. The association has tried to collect this debt across the years to no avail. It is for this reason we have proposed a change in the governing documents that spells out the process to give the board more options for collection.
The Finance Committee (the new name of the combined Budget and Collections Committees) will meet in January and is expected to take up the issue of outstanding debt and collections of past due assessments.
The date for this Finance Committee meeting has not yet been set but will be announced on the website calendar and by email when it is.
Please contact the GLA Board via info@glamontana.org if you have further questions or concerns.
Thank you,
The Communications
Committee
Ticket: glamontana.freshdesk.com/helpdesk/tickets/381
The 2nd letter I sent and what the Committee was replying to:
To: Rudy and/or Karleen
To provide for broader Member awareness and distribution, I am sending this to: info@glastonburylandownersforpositivechange.wordpress.com; nghilltopgroup@gmail.com; theirishpossee@gmail.com
Thanks you for sending me the Excel spread sheet with portions of the information I had hoped to see when I reviewed the actual late assessment payment plans I had requested back on November 9th. Unfortunately this spread sheet is greatly lacking the critical information of: 1) beginning amounts as calculated per Covenant 11.06; 2) interest rate to be applied to the beginning amount and through the life of the contract, and 3) anticipated length of the contract. Information I felt was commonly known as critical to any contract interpretation and information I was seeking. Unfortunately during the Board meeting on Dec. 7, I was lured into accepting that the information I sought, and more, would be delivered in the spread sheet.
Since these three critical items were not included, I now feel disrespected and basically lied to. However, I am willing to allow the Board two options to fulfill my original request. 1) Complete the spreadsheet by inserting the following: a; total assessments, with interest, due when the contract was signed; b) interest rates used to calculate the total amount due for each debt before signing; c) interest rate for each contract; d) years and amounts of assessments not paid and e. duration of each contract based on minimum payments to be made. Option number 2 is to process the document request below that is being made based on State Law. Because my original request was made November 9, I must ask that the time line stated under State law become the deadline for responding to either option 1 or 2.
So that all Board members know, I was shocked to see the balance due column of the spreadsheet total showed only $36,818.18 remaining due to GLA from late assessment payments. There have been numerous discussions at Board meetings about past due assessments, indicating over $271,000 was owed to GLA from late assessments. The $271,000 is shown in Accounts Receivable on the Balance Sheet dated November 30, 2015, which was presented to Members at the December 7, 2015 Board Meeting. Since $36,818 is all that is on payment plans, then approximately $234,000 is outstanding debt that has grown through many years, and apparently has never been pursued.
Unfortunately I must believe there is an effort underway to hide what interest rates are used to calculate late assessment debts, the interest rate for each individual late payment plan and the time line required to pay off the debt.
However, I am willing to accept the spreadsheet being corrected and sent to me again as long as it is done within the time line allowed to fulfill the document request filed under State law, which is below. To assure I am following GLA’s policies, I submit the Document Request below under State law 35-2-907 stating in critical part “a member is entitled to inspect and copy, at a reasonable time and location specified by the corporation, any of the records of the corporation described in 35-2-906(5)” and State Law 35-2-906(5)(c) which states “(5) A corporation shall keep a copy of the following records at its principal office or a location from which the records may be recovered within 2 business days: (c) resolutions adopted by its board of directors relating to the characteristics, qualifications, rights, limitations and obligations of members or any class or category of members;” (emphasis added)
In this document request under State law, i am specifically asking for copies of the actual contracts signed, the minutes of meetings and any other documents pertaining to resolutions passed by the Board enabling or discussing entering into late assessment payment plans, agreements or other obligations between the Association and a Member.
In order to understand the scope and rate of increase of this $ 234,000+ debt, I am including a second document request for the 2013, 2014, and 2015 Annual Delinquent Accounts report required by the GLA Assessment Policy. The form necessary to receive those reports is shown below.