Post by leokeeler on Jun 5, 2016 16:23:02 GMT -7
Can the Board make a Rule that Changes our Covenants? I just sent in this letter with reasons WHY NOT, and asked for documents they must have if they have done it.
To: GLA Board of Directors, Glastonbury Landowners For Positive Change
At the June 1st Finance Committee meeting, the group discussed the confusion created by the Board sending the Spring 2016, Newsletter without including a copy of Alanah’s comments and recommendations. The Motion passed on April 11th was subject to “approval of the GLA attorney” and that approval must be documented, attached to the official record, and available for Landowners to see.
On May 23, I sent a letter and Document Request form asking for any letters from any attorney pertaining to changes to Covenant 11.06 interest rates. I have heard that, during the closed meeting session on May 16th, the Directors were provided a 2 page letter from Alanah, but I have not received any reply to my request for that document. Alanah’s advice is usually interpreted by Dan so that the Board will vote to approve his stated desires, so I doubt she clearly stated the Board can change a Covenant by referring to their action as making a Rule. This request is to assure that if/when the Board acts under the proposed Rule, there is a clear and definite statement from an attorney that the Board can change any Covenant simply by passing a Rule.
Attached is another Document Request made under State law 35-2-906 (5)(c) which requires the Resolution and the supporting document “GLA Attorney approval” to be available within 2 business days.
During the Finance meeting, we considered the proposed Collection Procedures, which identify the steps the Board will take when Landowners become delinquent in paying their assessments. I informed those present that those collection procedures would likely be within the legal constraints of Covenant 2.07, as they define specific steps to be taken during an enforcement action. Those Collection Procedures do not fundamentally change the language or intent of Covenant 11.06. As an example of legal Rule making, compare establishing a Rule under our Covenants to the Dept. of Natural Resources (the Board) enforcing a State law (GLA Covenant) that limits activities on State land (within the Community.) The DNR (the Board) can define the steps they will take to enforce the law, but they cannot change language of the law itself.
The Board’s attempted use of enforcement of a Covenant to justify changing that Covenant will become an interesting legal controversy. If legal, this approach could be used by the Board to change any Covenant or the Master Plan permanently without Landowner participation.
The Board having such powers leaves the Covenants forever “open to interpretation.” How many current Landowners would agree to give the Board such sweeping powers? Was that their intent when voting on the 1997 Covenant amendments? How many Realtors would steer their clients away from Glastonbury if Landowners have no power over their land? What has this action done to current or future property values?
Did the Board document any discussions with Alanah wherein she said Covenant 2.07 trumps Covenant 2.05, or even on how they relate to each other? Is there any documentation on the need to pass an interim rule when the vote by Landowners is scheduled for August 6th? Does simply mentioning the new Rule in the Newsletter with a title saying “For Landowner 30-Day Review” meet legal requirements and intent of the 30 day review? Since the Motion has already been voted on, does the request for Landowner input (Review) after the fact make the request itself meaningless?
At the Finance meeting, Charlotte said there could not have been a vote during the closed session on May 16th, because votes cannot be cast during a closed meeting. So, how did the Motion of April 11th become a Rule that was introduced in the current Newsletter? It being a Rule, and “retroactive” as Dan Kehoe repeatedly asserts, was never mentioned verbally during the April 11th meeting. The recording of his motion clearly shows he defined the period for the interim action as “this is a motion for the interim period between now and, say, November.” What records exist showing the process of it becoming a “RULE?” How can it be made retroactive if that was not discussed in an open manner and made part of the motion?
I, personally, am very tired of hearing that the Courts commonly accept or set interest rates of 12%, so this is sufficient reason to automatically go to 12% on all past due accounts. The Board has been told numerous times that GLA does not have to immediately go to Court based on the 18%. I believe all Landowners understand 18% may not be enforceable if a Landowner chooses to go to court over the issue. However, I also see it to be your fiduciary duty to use State law to obtain the maximum amount possible.
May I remind the Board yet again; Mediation is required before a Judge will hear a case. I’ve repeatedly recommended negotiations on interest rates begin ONLY “IF” or when a Landowner objects to the bill they receive and threaten to go to Court. When a bill is contested, GLA should enter a basic mediation process with the Landowner, and can then justifiably offer a 15% interest rate as reasonable, as 15% is supported by current state law.
Should no agreement be reached, in Alaska, both parties may agree to keep court costs down by agreeing on facts that can be presented to a Judge. I believe the same to be true in Montana, as well. Such facts could then be put in the proper form by a mutually agreed upon attorney and presented to a Judge at very little cost to either side.
I’d now like to speak to the problem of a written “approval by an attorney” letter not being provided to landowners. It was reported to me that Alanah’s letter did not say that it was confidential, not to be copied, or shared with Landowners. In fact, on February 20th, Alanah specifically said this matter was NOT confidential and could easily be shared with Landowners.
Landowner knowledge of the process used to consider and vote on establishing a Rule that changes the interest rate in covenant 11.06 is critical. The motion passed at the April 11th meeting was clarified with the statement, “this is a motion for the interim period between now and, say, November” and voted on as “Pending approval of the GLA attorney, I move that we set the interest rate we’re charging on the delinquent accounts at 12% and we do not umm institute the 5% umm penalty. And we charge simple interest.” Since it is required in the motion, the Board is required by State law and our Covenants to show Landowners a document written by an attorney that clearly states this action is legal and within the GLA Board’s power and authority.
One final comment - I am very concerned there is a conflict of interest for most of the Board of Directors under 35-2-418(4) “For purposes of this section, a director of the corporation has an indirect interest in a transaction if: (a) another entity in which the director has a material interest or in which the director is a general partner is a party to the transaction…” Most of the Board members are long-term members of Church Universal and Triumphant. Some are officers or employees of the church and others are tithing Members. All Directors tithing to the Church are general partners and/or have a material interest related to the Church and other Church members who are Landowners. This brings into consideration 35-2-418(5) “For purposes of subsections (2) and (3), a conflict of interest transaction is authorized, approved, or ratified, if it receives the affirmative vote of a majority of the directors on the board or on the committee who have no direct or indirect interest in the transaction.” Will there be a vote by Directors who are not partners in some way to or through the Church, to enable all Directors to be involved in negotiations with the Church or other Partner/Landowners in the Church’s organization, and who will abstain?
Under State law 35-2-906(5)(c) I submit a new Document Request for the motion/resolution and all related documents for establishing the Rule as described in the Newsletter. I also repeat my Document Request originally sent in on May 23rd that asked for any letters from any attorney pertaining to changes to Covenant 11.06 interest rates. Specifically, I am asking for the 2 page letter that Board members received during the closed meeting session on May 16th that supposedly authorized the Board to take such action.
I am also asking any Director to respond to my request for information on the development of the new Rule.
Thank You
Leo Keeler
To: GLA Board of Directors, Glastonbury Landowners For Positive Change
At the June 1st Finance Committee meeting, the group discussed the confusion created by the Board sending the Spring 2016, Newsletter without including a copy of Alanah’s comments and recommendations. The Motion passed on April 11th was subject to “approval of the GLA attorney” and that approval must be documented, attached to the official record, and available for Landowners to see.
On May 23, I sent a letter and Document Request form asking for any letters from any attorney pertaining to changes to Covenant 11.06 interest rates. I have heard that, during the closed meeting session on May 16th, the Directors were provided a 2 page letter from Alanah, but I have not received any reply to my request for that document. Alanah’s advice is usually interpreted by Dan so that the Board will vote to approve his stated desires, so I doubt she clearly stated the Board can change a Covenant by referring to their action as making a Rule. This request is to assure that if/when the Board acts under the proposed Rule, there is a clear and definite statement from an attorney that the Board can change any Covenant simply by passing a Rule.
Attached is another Document Request made under State law 35-2-906 (5)(c) which requires the Resolution and the supporting document “GLA Attorney approval” to be available within 2 business days.
During the Finance meeting, we considered the proposed Collection Procedures, which identify the steps the Board will take when Landowners become delinquent in paying their assessments. I informed those present that those collection procedures would likely be within the legal constraints of Covenant 2.07, as they define specific steps to be taken during an enforcement action. Those Collection Procedures do not fundamentally change the language or intent of Covenant 11.06. As an example of legal Rule making, compare establishing a Rule under our Covenants to the Dept. of Natural Resources (the Board) enforcing a State law (GLA Covenant) that limits activities on State land (within the Community.) The DNR (the Board) can define the steps they will take to enforce the law, but they cannot change language of the law itself.
The Board’s attempted use of enforcement of a Covenant to justify changing that Covenant will become an interesting legal controversy. If legal, this approach could be used by the Board to change any Covenant or the Master Plan permanently without Landowner participation.
The Board having such powers leaves the Covenants forever “open to interpretation.” How many current Landowners would agree to give the Board such sweeping powers? Was that their intent when voting on the 1997 Covenant amendments? How many Realtors would steer their clients away from Glastonbury if Landowners have no power over their land? What has this action done to current or future property values?
Did the Board document any discussions with Alanah wherein she said Covenant 2.07 trumps Covenant 2.05, or even on how they relate to each other? Is there any documentation on the need to pass an interim rule when the vote by Landowners is scheduled for August 6th? Does simply mentioning the new Rule in the Newsletter with a title saying “For Landowner 30-Day Review” meet legal requirements and intent of the 30 day review? Since the Motion has already been voted on, does the request for Landowner input (Review) after the fact make the request itself meaningless?
At the Finance meeting, Charlotte said there could not have been a vote during the closed session on May 16th, because votes cannot be cast during a closed meeting. So, how did the Motion of April 11th become a Rule that was introduced in the current Newsletter? It being a Rule, and “retroactive” as Dan Kehoe repeatedly asserts, was never mentioned verbally during the April 11th meeting. The recording of his motion clearly shows he defined the period for the interim action as “this is a motion for the interim period between now and, say, November.” What records exist showing the process of it becoming a “RULE?” How can it be made retroactive if that was not discussed in an open manner and made part of the motion?
I, personally, am very tired of hearing that the Courts commonly accept or set interest rates of 12%, so this is sufficient reason to automatically go to 12% on all past due accounts. The Board has been told numerous times that GLA does not have to immediately go to Court based on the 18%. I believe all Landowners understand 18% may not be enforceable if a Landowner chooses to go to court over the issue. However, I also see it to be your fiduciary duty to use State law to obtain the maximum amount possible.
May I remind the Board yet again; Mediation is required before a Judge will hear a case. I’ve repeatedly recommended negotiations on interest rates begin ONLY “IF” or when a Landowner objects to the bill they receive and threaten to go to Court. When a bill is contested, GLA should enter a basic mediation process with the Landowner, and can then justifiably offer a 15% interest rate as reasonable, as 15% is supported by current state law.
Should no agreement be reached, in Alaska, both parties may agree to keep court costs down by agreeing on facts that can be presented to a Judge. I believe the same to be true in Montana, as well. Such facts could then be put in the proper form by a mutually agreed upon attorney and presented to a Judge at very little cost to either side.
I’d now like to speak to the problem of a written “approval by an attorney” letter not being provided to landowners. It was reported to me that Alanah’s letter did not say that it was confidential, not to be copied, or shared with Landowners. In fact, on February 20th, Alanah specifically said this matter was NOT confidential and could easily be shared with Landowners.
Landowner knowledge of the process used to consider and vote on establishing a Rule that changes the interest rate in covenant 11.06 is critical. The motion passed at the April 11th meeting was clarified with the statement, “this is a motion for the interim period between now and, say, November” and voted on as “Pending approval of the GLA attorney, I move that we set the interest rate we’re charging on the delinquent accounts at 12% and we do not umm institute the 5% umm penalty. And we charge simple interest.” Since it is required in the motion, the Board is required by State law and our Covenants to show Landowners a document written by an attorney that clearly states this action is legal and within the GLA Board’s power and authority.
One final comment - I am very concerned there is a conflict of interest for most of the Board of Directors under 35-2-418(4) “For purposes of this section, a director of the corporation has an indirect interest in a transaction if: (a) another entity in which the director has a material interest or in which the director is a general partner is a party to the transaction…” Most of the Board members are long-term members of Church Universal and Triumphant. Some are officers or employees of the church and others are tithing Members. All Directors tithing to the Church are general partners and/or have a material interest related to the Church and other Church members who are Landowners. This brings into consideration 35-2-418(5) “For purposes of subsections (2) and (3), a conflict of interest transaction is authorized, approved, or ratified, if it receives the affirmative vote of a majority of the directors on the board or on the committee who have no direct or indirect interest in the transaction.” Will there be a vote by Directors who are not partners in some way to or through the Church, to enable all Directors to be involved in negotiations with the Church or other Partner/Landowners in the Church’s organization, and who will abstain?
Under State law 35-2-906(5)(c) I submit a new Document Request for the motion/resolution and all related documents for establishing the Rule as described in the Newsletter. I also repeat my Document Request originally sent in on May 23rd that asked for any letters from any attorney pertaining to changes to Covenant 11.06 interest rates. Specifically, I am asking for the 2 page letter that Board members received during the closed meeting session on May 16th that supposedly authorized the Board to take such action.
I am also asking any Director to respond to my request for information on the development of the new Rule.
Thank You
Leo Keeler
Attachments:
