[Note added 30-May-2018: Originally, this article accused the HOA of breaking the law by conducting inappropriate business in executive session, but they tell me that they are grandfathered and the law in question doesn’t apply to them. So I’ve edited the article to reflect this. Those changes are in red.
I should also add that after this article was written, I’ve had a chance to meet privately with a few Board members to discuss my complaints, and that I’ve seen real reform, although not everything is fixed yet. Most importantly, Board meetings are more open and the Board is now very careful about what they do in executive session.]
At the October Gunbarrel Green HOA meeting, I accused the Board of operating in secret, pointing out that they never announce publicly when and where Board meetings are held, and never publish minutes of their meetings. HOA President Janet Reutcke sharply disagreed with my accusation. She gave no particulars, but I guess she meant that if anyone could discover when and where a Board meeting was held, they would be allowed into the room. Or maybe she didn’t even think about what I had said, but just resented the criticism. If so, she’s going to like this article a lot less.
At that HOA meeting, to ensure that future Board meetings would be public, I got a motion passed. According to the draft minutes of the HOA meeting, which were posted on the HOA website:
Marc Rochkind made a motion for the following
All board meeting minutes be posted to the website.
Draft minutes should be posted 3 days after the meeting
Approved minutes as they are available.
Notice of board meetings should be posted 1 week in advance.
Accordingly, notice was posted in a paper newsletter that I received around Nov. 1, and I emailed back that I would attend the meeting. In a subsequent email I was told that it would be at Janet’s house on Nov. 15 at 7 PM, and I attended the meeting. The newsletter had invited anyone to email Gina Hyatt (a former Board member who’s still very active in HOA affairs) if they wanted to add items to the agenda, and I did so.
I was the only non-Board member in attendance on the 15th, other than Gina. It was mentioned that two people wanted to attend, but had not registered, so did not come. Janet called them, but they did not attend. (Perhaps they had other plans, since the meeting was about to start.) I think that requiring registration to attend a public meeting is possibly illegal, but that’s a minor matter compared to the more egregious illegalities that took place.
Anyway, the meeting began with a discussion of my added items, for about an hour. Then I was told that the Board would go into executive session, and I had to leave. There can be no dispute about this, because the minutes say:
Marc was told that the meeting would be moving into executive session and he left about 8 p.m.
Note that not only was I told that the executive session would begin, but that I was explicitly told to leave.
Here’s where the HOA Board possibly broke the law, and possibly lied, as well. Let’s work it out: Either the Board did or did not enter executive session.
If the Board did not enter executive session, I was lied to in order to get me to leave the meeting, even though both the HOA Bylaws and State law require that HOA Board meetings be public.
If the Board did enter executive session, which is more likely, what followed was illegal, according to the minutes, which document that the following took place after I left the meeting:
- Discussion and action about several covenant violations.
- Treasurer’s report discussed and approved.
- Architectural Committee report.
- Bylaws and Articles of Incorporation Review Committee report.
- Community Projects Committee Report.
- Approval of up to $800 for entry arch decoration, and discussion of additional lighting.
- Discussion of Boulder Rural Fire and Rescue issues.
The minutes are here, on my private website. They have not been posted to the HOA website in draft or final form, as required by the motion passed at the Oct. HOA meeting, but that’s a topic for another article.
There isn’t anything in the Bylaws or Articles of Incorporation that allows the Board to go into executive session, so I don’t know if that’s even allowed, but, assuming it is, State law restricts what can be discussed, although our HOA, being old, might be grandfathered out of the requirement. Here’s a summary from State HOA website:
Colorado law requires all board meetings to be open to the members of the association, unless the board goes into an executive session. Colorado law (C.R.S. 38-33.3-308(4)) allows the executive board or any committee thereof, to go into executive or closed session and can prohibit owner attendance for the following limited matters:
- Matters pertaining to employees of the association or the managing agent’s contract or involving the employment, promotion, discipline, or dismissal of an officer, agent, or employee of the association;
- Consultation with legal counsel concerning disputes that are the subject of pending or imminent court proceedings or matters that are privileged or confidential between attorney and client;
- Investigative proceedings concerning possible or actual criminal misconduct;
- Matters subject to specific constitutional, statutory, or judicially imposed requirements protecting particular proceedings or matters from public disclosure;
- Any matter the disclosure of which would constitute an unwarranted invasion of individual privacy.
- Review of or discussion relating to any written or oral communication from legal counsel.
Prior to the time the members of the executive board or any committee thereof convene in executive session, the chair of the body shall announce the general matter of discussion as enumerated in the statute.
Contrary to that law, the chair did not “announce the general matter of discussion as enumerated in the statute.” She only said that the Board would enter executive session.
The only one of these “limited matters” that applied to the Nov. 15 “executive session” was “[a]ny matter the disclosure of which would constitute an unwarranted invasion of individual privacy,” and that would apply to the covenant violations. Indeed, in a Nov. 13 email to me from Janet, she said this:
Just wanted to let you know that the meeting this Wednesday will be held at my house at …, at 7pm. I have put you first on the agenda and we will try to give you ample time for your questions and comments, etc. We will need to move into executive session afterwards, as we have quite a few private matters involving various residents. No secrets, just issues that require us protecting their privacy.
So, the Board
broke the deviated from current law by discussing the treasurer’s report, the architectural committee report, the Bylaws and Articles, the community projects, the arch decoration and lighting, and the fire department during executive session.
Or, as I said, the Board both
broke deviated from the law and lied when it told me to leave what the law requires to be a public meeting.
Why is the Board so secretive about such innocuous things (other than the covenant violations)? Beats me. You’d think they would want people to know what they do, almost all of which is pretty good. Here’s a recent post at nextdoor.com, a public community forum:
Ruth Osborn, Boulder Country Club 24 Nov
I don’t think $100 [for HOA dues] is reasonable. They use most of that money for litigation against our neighbors for not following their rules.
Wow, if Ms. Osborn only knew that the Board does so much more than that!
Back to the main story here: When I complained to Janet that the Board had illegally gone into executive session, she said this in a Dec. 2 email to me:
I can honestly say that I had no idea you wanted to stay longer. When I told you ahead of the meeting that we would need to break into executive session, you didn’t mention anything about wanting to stay.
Janet seems to think, or is claiming she thinks, that I wanted to attend the executive session. But, whether I did or didn’t is irrelevant, because what followed was either not an executive session or was an
illegal inappropriate executive session. She also is trying to blame what happened on me, because I didn’t insist on staying. Actually, I was thinking of objecting to being told to leave, but this was her home, and I don’t think I can legally refuse to leave someone’s home once asked. That’s probably trespassing or some other crime. Also, I was trying to be cooperative. So Janet’s email to me is bullshit. (The Board needs to stop meeting in members’ homes.)
I don’t think the Board was knowingly breaking the law. Let me be very precise about what I think they were doing:
- They wanted me out of the meeting. I know this because I was asked to leave.
- They don’t know what an executive session is; they think they can have one whenever they want to be secretive about what they’re doing.
This is another case of our HOA Board, and specifically our HOA President, Janet Ruetcke, not knowing how to run the HOA. I don’t know how long Janet has been President, but it’s been at least since 2012, so let’s say 5 years. In that 5 years, here’s a list of some things she doesn’t know:
- That the Bylaws call for nomination for election to the Board to be made by a nominating committee. There has never been one.
- That the vote for the Board be by secret written ballot. (Done for the first time at the October meeting, at my insistence.)
- That Board members serve for three-year terms. Up until last October, there was a voice vote at every meeting to re-elect the entire Board. But, when I placed my name in nomination, thinking I might replace one of the five members of the Board, Janet suddenly announced that she was the only one up for election. This had never happened before.
- That according the Articles of Incorporation, which are very clear about this, increasing dues requires 60% of the entire HOA membership. (Janet and other Board members think they can vote at a meeting, which was done in 2016, because the Bylaws are unclear. But they Bylaws say that the Articles are in control. They don’t know this. I wrote about this recently, and all the details are there.)
- That all Board meetings are to be public.
- That at the Oct. HOA meeting we required that draft Board minutes be posted within 3 days of the meeting.
[Unnecessarily harsh paragraphs deleted]
Should Janet Reutcke resign? I think she should, but I’m sure she won’t, and most HOA members probably don’t want her to. But maybe many of us would ask her to at least commit (in writing, along with an apology) to following the Bylaws, the Articles, and State law in the future. And, she should not use whatever loopholes she can discover to continue to operate in secret. Everything the Board does should be open, including any emails exchanged between Board members that aren’t about the limited matters that are allowed by law for executive sessions.
Meanwhile, my advice:
- Assume that all communication from the Board is manipulative and possibly dishonest, and
- Never vote by proxy for anything, such as Bylaws, Articles of Incorporation, Covenant, or dues/fees/assessments changes.
We have a secretive, dishonest, possibly unethical HOA Board, and we need to be very careful they don’t do us serious harm.