Tuesday, May 20, 2014
Tony Thompson Rebuttal #2
Mr. West, May 20, 2014
Your “assurance” that the petition submitted to you requesting a special meeting be held for the purpose of voting on the removal of Rich Kelley as a director not conforming to our Bylaws is not very reassuring to me. The only thing you have stated of which I agree with is in requesting the members read the Bylaws and the petition and decide for themselves.
As for the number of signatures on the petition, there are indeed at least 24 votes on that petition but only 16 were introduced to the board by Al Duff as that was more than a sufficient number to meet the requirements of the Bylaws. A fact you must have forgotten for I was told you were present at the meeting when this was explained. The point is, a sufficient number of votes were presented to you requesting a meeting. An explanation for why these voters requested the meeting was also provided to you. You have made that explanation into an “excuse” for dismissing the petition. You are stating you don’t like the wording of the petition. I don’t know how I can make it any clearer to you sir: “Over 10% of the eligible votes have indicated the people want a meeting”. You can criticize me all you want but the fact remains this petition is a simple request and you are making it into something much more. In regard to your reference to the laws giving the Board of Directors the right to sue people without informing the members of the POA or asking for their vote, I did not mean to refute those laws sir; I was only trying to question the morale implications of what you were saying. It was in direct parallel with your reluctance to allow the vote this petition requests. I hope this answers your question of “what the lawsuit has to do with the petition”. For you to accuse me of being part of a clique to stop a lawsuit is utterly absurd!! If you are indeed planning to sue people involved in the purchase of that grader it is none of my business. I was against the grader purchase from the very beginning. If you plan on suing anyone on behalf of the POA, then I feel it is the business of all POA members. My wish would simply be that any involvement you have with lawsuits should be done on your own accord and not involve the members of this POA unless you inform us of the facts and allow us our right to vote. Do not misunderstand me Mr. West: I am speaking of voting rights here and the right to assemble. There is no conspiracy that I am involved with. The only “clique” I am aware of is that in your mind. Is this why you are against this petition? You think a bunch of “radicals” are trying to take over the POA? It’s the only thing I can imagine that would explain your fear of the members given the right to vote.
You suggest I write another petition that would follow the “rules”. What “rules” Mr. West? Those of the Bylaws have been followed. If you don’t approve of the wording, or if you think the author has to be identified, or if you think a liability risk may exist because the members might not approve of the actions of a director… I can’t help that. I can only abide by written laws. I did not begin this petition as a debate nor did I ever intend to get into a mudslinging series of correspondence. I submit to your decision to ignore the petition. I apologize for expressing frustration at times and I appreciate the fact that this board is liberal enough to allow a member the freedom of speech.
Respectfully Submitted By: Tony Thompson, Lot 231
Dave West's rebuttal to Tony Thompson
Mr. Tony Thompson,
This is in reply to your letter dated May 17, 2014. I found your letter to be a model of hypocrisy,
misinterpretation and “untruths”. I can assure you that your petition does not conform to the
Bylaws. You cannot ask for an officer’s removal on the petition, which you clearly did no matter
how circumspectly written. By including the demand that the “new board give serious
consideration to the termination” of an officer you have wasted the time of everyone
involved in this matter. You clearly do not understand the rules and the laws involved
or choose to misinterpret them to your own ends.
You suggest that because I and the rest of the Board rejected your petition we are acting
contrary to the wishes of the majority of the membership. Nothing could be further from
the truth. The membership, I believe, wants the Board to follow the rules and laws in our
administration. This has been my platform since the beginning and why I was elected.
You state that “Over two dozen signatures are on that petition asking for nothing more
than a meeting and you are denying them that right.” I have the petition in front of me as
I write this, there are sixteen signatures on the petition not “over two dozen”. And they
are asking for more than a meeting, they are asking for a recall of a duly elected member of
the Board and for his removal as an officer, the members meeting is incidental to this process.
Yes, they have the right to ask for a vote to recall a Board member and it could have
happened except for a poorly written petition. Sixteen out of ninety one members does
not constitute “majority wishes”. Only after a vote will the wishes of the majority be known.
You also seem to ignore the rights of the Board members who are, first and foremost,
Association members. They have the right of due process in any proceedings of this
Association. This is ensured by following the rules and laws. By calling for Mr. Kelley’s
removal as an officer in your petition you ignore those rules and laws. This disregard for
the rules opens the door to law suits and why I included this warning (it was not a threat)
for your benefit. In my research on the recall of Board members, lawyers have stated that
this is one of the most frequent reasons for lawsuits involving HOAs/POAs. Following
the rules and laws helps protect the Association from lawsuits.
The question posed by Ms. Johnson which I answered and posted on our website was a
valid question. You refer to my answer as a “bunch of codes and wordy phrases”. What do
think laws and rules are? I took the time to list all applicable laws and rules so that Ms. Johnson
and anyone else can research them and not just have my word on this question. Obviously you
do not understand or do not wish to understand the laws and rules and try to sweep them
away by referring to the “rights of the people”. The rights of the people are stated in our
Constitution and Bill of Rights. Laws are codified protection of those rights. Yes, the legal
system is flawed, as we all know, however this does not give you the right to ignore those
laws that are not in your best interest or that you do not agree with. Those items that
require a membership vote are spelled out in our CC&Rs and the Bylaws.
Like you Mr. Thompson I am a busy man and have no time for your “foolishness” or for your
“misinterpretations” and “untruths”. Your petition was declined because as you wrote it, it is in
violation of the rules. Your attempt to blame myself and the Board for your failure is irresponsible
and shows a lack of accountability.
Present a petition to remove any Board member, which follows the rules, and the
Board will go forward with the vote and members meeting as required.
The membership also needs to know what I believe is the true purpose of this petition. You are a
member of a small clique which includes the assumed target(s) of an Association lawsuit (on the
unlawful purchase of a motorgrader with Association funds). This petition is a transparent attempt
to “break up” the Board in the hope of stopping the lawsuit. My belief is supported by your
inclusion of Ms. Johnson's question on the Boards right to sue, independent of a membership vote
and your statements about the costs of a lawsuit. What does the lawsuit have to do with the recall
petition?
I urge all members to carefully read your letters and your petition as well as my replies.
Respectfully,
David West,
Secretary, Highroads Property Owners Association
Here is the petition
This is in reply to your letter dated May 17, 2014. I found your letter to be a model of hypocrisy,
misinterpretation and “untruths”. I can assure you that your petition does not conform to the
Bylaws. You cannot ask for an officer’s removal on the petition, which you clearly did no matter
how circumspectly written. By including the demand that the “new board give serious
consideration to the termination” of an officer you have wasted the time of everyone
involved in this matter. You clearly do not understand the rules and the laws involved
or choose to misinterpret them to your own ends.
You suggest that because I and the rest of the Board rejected your petition we are acting
contrary to the wishes of the majority of the membership. Nothing could be further from
the truth. The membership, I believe, wants the Board to follow the rules and laws in our
administration. This has been my platform since the beginning and why I was elected.
You state that “Over two dozen signatures are on that petition asking for nothing more
than a meeting and you are denying them that right.” I have the petition in front of me as
I write this, there are sixteen signatures on the petition not “over two dozen”. And they
are asking for more than a meeting, they are asking for a recall of a duly elected member of
the Board and for his removal as an officer, the members meeting is incidental to this process.
Yes, they have the right to ask for a vote to recall a Board member and it could have
happened except for a poorly written petition. Sixteen out of ninety one members does
not constitute “majority wishes”. Only after a vote will the wishes of the majority be known.
You also seem to ignore the rights of the Board members who are, first and foremost,
Association members. They have the right of due process in any proceedings of this
Association. This is ensured by following the rules and laws. By calling for Mr. Kelley’s
removal as an officer in your petition you ignore those rules and laws. This disregard for
the rules opens the door to law suits and why I included this warning (it was not a threat)
for your benefit. In my research on the recall of Board members, lawyers have stated that
this is one of the most frequent reasons for lawsuits involving HOAs/POAs. Following
the rules and laws helps protect the Association from lawsuits.
The question posed by Ms. Johnson which I answered and posted on our website was a
valid question. You refer to my answer as a “bunch of codes and wordy phrases”. What do
think laws and rules are? I took the time to list all applicable laws and rules so that Ms. Johnson
and anyone else can research them and not just have my word on this question. Obviously you
do not understand or do not wish to understand the laws and rules and try to sweep them
away by referring to the “rights of the people”. The rights of the people are stated in our
Constitution and Bill of Rights. Laws are codified protection of those rights. Yes, the legal
system is flawed, as we all know, however this does not give you the right to ignore those
laws that are not in your best interest or that you do not agree with. Those items that
require a membership vote are spelled out in our CC&Rs and the Bylaws.
Like you Mr. Thompson I am a busy man and have no time for your “foolishness” or for your
“misinterpretations” and “untruths”. Your petition was declined because as you wrote it, it is in
violation of the rules. Your attempt to blame myself and the Board for your failure is irresponsible
and shows a lack of accountability.
Present a petition to remove any Board member, which follows the rules, and the
Board will go forward with the vote and members meeting as required.
The membership also needs to know what I believe is the true purpose of this petition. You are a
member of a small clique which includes the assumed target(s) of an Association lawsuit (on the
unlawful purchase of a motorgrader with Association funds). This petition is a transparent attempt
to “break up” the Board in the hope of stopping the lawsuit. My belief is supported by your
inclusion of Ms. Johnson's question on the Boards right to sue, independent of a membership vote
and your statements about the costs of a lawsuit. What does the lawsuit have to do with the recall
petition?
I urge all members to carefully read your letters and your petition as well as my replies.
Respectfully,
David West,
Secretary, Highroads Property Owners Association
Here is the petition
Sunday, May 18, 2014
Thank you Tony Thompson
Tony,
Thank you for your letter regarding the petition to recall Rich Kelley. I am amazed at how our Board of Directors interpret letters, laws and bylaws for the convenience of their personal agendas. It will be interesting to see how the BOD will respond to this latest information. I see no way for them to hide from their responsibility to uphold the bylaws of this POA and the laws of Arizona. The BOD on many occasions have not been forth coming on their intentions and decisions with regards to the motor grader and they are intentionally withholding information from the members as to what they are doing with our money. The members have every right to this information. Their scare tactics to sue the members is beyond belief. My suggestion to the BOD is they should have been flawless in their acts as Directors with no "blood on their hands" before attempting to accuse others and make threats that have no merit. We the people have every right to petition for the removal of a Director as stated in our bylaws and also the Arizona Revised Statutes.
Thank you again for the insight and for the time that you have so generously given to write on behalf of the members.
Curt & Sheri Johnson (Lot 249)
Thank you for your letter regarding the petition to recall Rich Kelley. I am amazed at how our Board of Directors interpret letters, laws and bylaws for the convenience of their personal agendas. It will be interesting to see how the BOD will respond to this latest information. I see no way for them to hide from their responsibility to uphold the bylaws of this POA and the laws of Arizona. The BOD on many occasions have not been forth coming on their intentions and decisions with regards to the motor grader and they are intentionally withholding information from the members as to what they are doing with our money. The members have every right to this information. Their scare tactics to sue the members is beyond belief. My suggestion to the BOD is they should have been flawless in their acts as Directors with no "blood on their hands" before attempting to accuse others and make threats that have no merit. We the people have every right to petition for the removal of a Director as stated in our bylaws and also the Arizona Revised Statutes.
Thank you again for the insight and for the time that you have so generously given to write on behalf of the members.
Curt & Sheri Johnson (Lot 249)
Saturday, May 17, 2014
Tony Thompson's rebuttal to Dave West
Attention Mr. West, Secretary of Highroads POA May 17, 2014
In response to your letter of May 5 or 6, I would like to say I appreciate your speedy response
and professionalism. However, you evidently have a hunger for mentioning law suits. Where I come
from, the voice of the people is a voice to be listened to not threatened for. I assure you, that petition
I wrote abides by every aspect of our bylaws. I saw no mention in the bylaws that the name of the
person who draws up the petition needs to be noted nor do I recall ever seeing the name of the author
on any petition I have signed. I believe the important issue here is the number of signatures of property
owners who agree with the petition. They are the people who elected you and your fellow board
members into office believing you would listen to their needs and abide by majority wishes. You now
suggest that, in following the directions of the Bylaws, people signing a petition of this nature may be
sued by Mr. Kelley!! Oh Mr. West, you have disappointed me. Over two dozen signatures are on that
petition asking for nothing more than a meeting and you are denying them that right!
As for the wording of the petition being invalid because it is not consistent with Bylaws Article
IV, Section 3, (you stated “the petition…asks for the removal of Mr. Kelley from the office of Treasurer”)
I believe you need to read the petition once again, for the only mention it makes of removing Mr. Kelley
from his Treasurer position is in the first paragraph as follows:
“If Mr. Kelley is successfully terminated from his position as a Director, we hope that, by
membership vote, a replacement for his vacated position is elected as soon as possible and that the
new board gives serious consideration to the termination of Mr. Kelley as Treasurer of this POA”.
This specifically acknowledges that only the Board of Directors can terminate an officer. Either
you did not read this petition or you are purposely misinterpreting the facts. The sole purpose of this
petition was to request a special meeting be held to allow the members of this POA to decide by voting
if they felt Mr. Kelley should remain on the Board of Directors. It follows every step laid out in Article
III, Section 8 to the letter. In attempting to single me out as the author and suggest law suits may ensue
is not the way to respond to a request by the people. You responded to Ms. Johnson’s question “what
gives you the right to initiate a law suit without the consent of our members” by reciting a bunch of
codes and wordy phrases but you never mentioned the rights of the people. The people who pay dues
for the purpose of maintenance and other costs explained to us when we purchased our land. Do they
not have a right to know what law suits you have in mind and what costs will be involved? There are no
guarantees of success with law suits and therefore it is a gamble of our money! Does that not give us a
right to vote?
Your outlandish refusal to listen to the wants of our members makes it obvious to me that
further efforts to be heard will only result in more misinterpretations and untruths. I am a busy man
Mr. West and have no time for such foolishness. I do hope that fellow members will take an interest in
our conversations and see you for the person you are. I urge any fellow members reading this letter to
share it with others, along with Mr. West’s excuses and explanations of why he doesn’t have to listen to
the members or ask for their votes.
Respectfully Submitted By: Tony Thompson, Lot 231
In response to your letter of May 5 or 6, I would like to say I appreciate your speedy response
and professionalism. However, you evidently have a hunger for mentioning law suits. Where I come
from, the voice of the people is a voice to be listened to not threatened for. I assure you, that petition
I wrote abides by every aspect of our bylaws. I saw no mention in the bylaws that the name of the
person who draws up the petition needs to be noted nor do I recall ever seeing the name of the author
on any petition I have signed. I believe the important issue here is the number of signatures of property
owners who agree with the petition. They are the people who elected you and your fellow board
members into office believing you would listen to their needs and abide by majority wishes. You now
suggest that, in following the directions of the Bylaws, people signing a petition of this nature may be
sued by Mr. Kelley!! Oh Mr. West, you have disappointed me. Over two dozen signatures are on that
petition asking for nothing more than a meeting and you are denying them that right!
As for the wording of the petition being invalid because it is not consistent with Bylaws Article
IV, Section 3, (you stated “the petition…asks for the removal of Mr. Kelley from the office of Treasurer”)
I believe you need to read the petition once again, for the only mention it makes of removing Mr. Kelley
from his Treasurer position is in the first paragraph as follows:
“If Mr. Kelley is successfully terminated from his position as a Director, we hope that, by
membership vote, a replacement for his vacated position is elected as soon as possible and that the
new board gives serious consideration to the termination of Mr. Kelley as Treasurer of this POA”.
This specifically acknowledges that only the Board of Directors can terminate an officer. Either
you did not read this petition or you are purposely misinterpreting the facts. The sole purpose of this
petition was to request a special meeting be held to allow the members of this POA to decide by voting
if they felt Mr. Kelley should remain on the Board of Directors. It follows every step laid out in Article
III, Section 8 to the letter. In attempting to single me out as the author and suggest law suits may ensue
is not the way to respond to a request by the people. You responded to Ms. Johnson’s question “what
gives you the right to initiate a law suit without the consent of our members” by reciting a bunch of
codes and wordy phrases but you never mentioned the rights of the people. The people who pay dues
for the purpose of maintenance and other costs explained to us when we purchased our land. Do they
not have a right to know what law suits you have in mind and what costs will be involved? There are no
guarantees of success with law suits and therefore it is a gamble of our money! Does that not give us a
right to vote?
Your outlandish refusal to listen to the wants of our members makes it obvious to me that
further efforts to be heard will only result in more misinterpretations and untruths. I am a busy man
Mr. West and have no time for such foolishness. I do hope that fellow members will take an interest in
our conversations and see you for the person you are. I urge any fellow members reading this letter to
share it with others, along with Mr. West’s excuses and explanations of why he doesn’t have to listen to
the members or ask for their votes.
Respectfully Submitted By: Tony Thompson, Lot 231
Friday, May 16, 2014
Recall Petition
May 15, 2014
Mr. Thompson,
In reply to your email requesting information on the status of a petition to recall Mr. Rich Kelley from
the Board of Directors, the Board received the petition from Al Duff at the April 9, 2014 Directors
meeting. Mr. Duff did not inform the Board when he received the petition nor did he inform the Board
who he received the petition from. There was no author or any form of ownership attributable to the
petition. This poses a problem as there was no author to contact reference our concerns about the
petition. At the May 13, 2014 Directors meeting I had hoped that the owner/author of the petition
would be identified. At that meeting the Johnsons (Lot 249) advised me that you were the author. If you
are not, please advise me of the author(s)/owner(s) name if known.
It is the opinion of the Board that the petition is invalid. The petition, as written, asks for the removal
of Mr. Kelley from the Board, however it also asks for the removal of Mr. Kelley from the office of
Treasurer. You cite Bylaws Article III Section 8 as the rule allowing the membership to remove a Director
by petition and a membership vote. In this you are correct. However, by including removal of Mr. Kelley
as an officer the petition is in violation of Bylaws Article IV Section 3 which specifies that only the Board
of Directors may remove an officer. It is the Boards opinion that those who signed the petition may
not know of this violation and may believe that the petition can include removal of an officer, creating
false expectations on their part. Secondly, it is the Boards responsibility to protect the Association from
legal actions if possible. If this petition is allowed to go forward as written it will without a doubt open
the door for a possible lawsuit by Mr. Kelley against the Association and possibly against the author(s)/
owner(s) of the petition. With this in mind the Board will not go forward with this petition.
It is interesting and disconcerting that the authors of this petition choose to remain hidden. The identity
of all persons involved in the writing and signing of a petition for removal of a Board member are
open to disclosure to the membership (see Bylaws Article III Section 8, last sentence). This may
include the actual votes also. Those signing any such petition should be made aware of this provision.
This Board is committed to following the rules and the laws of the State of Arizona. When a petition
for removal of a Board member is presented to the Board and is in compliance with all applicable rules
and laws the Board will call for a members meeting and vote on the removal within the mandated time
period
.
Recourse to this Board decision is to either write a new petition or file a complaint with the Office of
Administrative Hearings.
David West, Secretary, Highroads Property Owners Association
Mr. Thompson,
In reply to your email requesting information on the status of a petition to recall Mr. Rich Kelley from
the Board of Directors, the Board received the petition from Al Duff at the April 9, 2014 Directors
meeting. Mr. Duff did not inform the Board when he received the petition nor did he inform the Board
who he received the petition from. There was no author or any form of ownership attributable to the
petition. This poses a problem as there was no author to contact reference our concerns about the
petition. At the May 13, 2014 Directors meeting I had hoped that the owner/author of the petition
would be identified. At that meeting the Johnsons (Lot 249) advised me that you were the author. If you
are not, please advise me of the author(s)/owner(s) name if known.
It is the opinion of the Board that the petition is invalid. The petition, as written, asks for the removal
of Mr. Kelley from the Board, however it also asks for the removal of Mr. Kelley from the office of
Treasurer. You cite Bylaws Article III Section 8 as the rule allowing the membership to remove a Director
by petition and a membership vote. In this you are correct. However, by including removal of Mr. Kelley
as an officer the petition is in violation of Bylaws Article IV Section 3 which specifies that only the Board
of Directors may remove an officer. It is the Boards opinion that those who signed the petition may
not know of this violation and may believe that the petition can include removal of an officer, creating
false expectations on their part. Secondly, it is the Boards responsibility to protect the Association from
legal actions if possible. If this petition is allowed to go forward as written it will without a doubt open
the door for a possible lawsuit by Mr. Kelley against the Association and possibly against the author(s)/
owner(s) of the petition. With this in mind the Board will not go forward with this petition.
It is interesting and disconcerting that the authors of this petition choose to remain hidden. The identity
of all persons involved in the writing and signing of a petition for removal of a Board member are
open to disclosure to the membership (see Bylaws Article III Section 8, last sentence). This may
include the actual votes also. Those signing any such petition should be made aware of this provision.
This Board is committed to following the rules and the laws of the State of Arizona. When a petition
for removal of a Board member is presented to the Board and is in compliance with all applicable rules
and laws the Board will call for a members meeting and vote on the removal within the mandated time
period
.
Recourse to this Board decision is to either write a new petition or file a complaint with the Office of
Administrative Hearings.
David West, Secretary, Highroads Property Owners Association
Thursday, May 15, 2014
Ms. Sheri Johnson,
You asked, at the last Board of Directors meeting, about the Boards authority to initiate legal action on behalf of the Association without a prior membership vote/approval. First, the authority comes from ARS 10-3302.1 which states that the corporation has the authority to sue. ARS Title 10 is the law(s) that covers all corporations and is superior to ARS Title 33 and our CC&Rs/Bylaws (the Association is a registered non profit corporation). Next our CC&Rs, Rule 2.5, states that the Board “shall conduct all affairs and exercise the powers of the Association”, except “those matters requiring the vote of the members”. If you search through both the CC&Rs and the Bylaws you will not find any requirement that the membership vote on legal matters. There are a number of specific instances when a membership vote is required i.e. election of Board of Directors, amendment to the CC&R/Bylaws, raising the dues etc, however no such requirement is stated regarding legal action(s). Bylaws, Article III Section 1.B, states that the powers of the Board are to “conduct, manage and control the affairs of the Association”. Also Bylaws Article III Section 1.I states that the Board has the power to “contract for and pay maintenance, materials, supplies and services relating to the operation ... including legal and accounting services. As you can see, the Board is given broad powers to conduct the affairs/business of the Association, unless there is a specific requirement stated in either the CC&Rs or the Bylaws that a membership vote is required. Again there is no requirement that the Board seek a membership vote to initiate a legal action on behalf of the Association. Finally your question was related specifically to the purchase of the motorgrader. Considering the circumstances of the motorgrader purchase, it is the Boards opinion that to not pursue legal action would constitute at worst malfeasance and at least misfeasance if it fails to attempt the retrieval of as much of the Associations money as possible.
I am asking that this reply to your question be put on the Association’s web site as it is valid and pertinent to current business also I am sure that you are not the only one to ask this question. Thank you for the opportunity to bring this to the members attention.
David West, Secretary Highroads Property Owners Association
Tony Thompson's Comments
To the Highroads Ranch POA Board of Directors:
Approximately two months ago you received a petition signed by multiple property owners
requesting a special meeting be held for the purpose of voting on the removal of Rich Kelley as a
director on this board. The petition was drawn up, signed and delivered to Al Duff in compliance with
Section 8, Article III of our bylaws. In that section, the bylaws also state “Upon receipt” of such a
petition, the board shall call and provide written notice of a special meeting stating the purpose of that
meeting. May I ask the board why you have chosen to ignore this petition and the bylaw section it
abides by?
Respectfully Submitted By
Tony Thompson, Lot 231
Approximately two months ago you received a petition signed by multiple property owners
requesting a special meeting be held for the purpose of voting on the removal of Rich Kelley as a
director on this board. The petition was drawn up, signed and delivered to Al Duff in compliance with
Section 8, Article III of our bylaws. In that section, the bylaws also state “Upon receipt” of such a
petition, the board shall call and provide written notice of a special meeting stating the purpose of that
meeting. May I ask the board why you have chosen to ignore this petition and the bylaw section it
abides by?
Respectfully Submitted By
Tony Thompson, Lot 231
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