SB 1489 Flops Before Even Reaching the Theatre

SB 1489 is dead. It’s hard to say which was a bigger flop: SB 1489 or its 2008 special session look-alike, SB 6016. Both of these bills were nearly identical. The 2008 version stayed alive for only 4 days but did get through the Senate before it failed. The 2009 version, SB 1489, was introduced on January 22nd and stricken from the docket of pending bills by Vogel herself on February 4th – before it ever even came to a vote in a committee.

We’ve previously outlined why SB 1489 (like its predecessor SB 6016) was a bad bill. Had it become law, it would have allowed the deed to an owner’s property to be changed in unforeseen and undesirable ways without that owner’s consent. The amendment provisions in the deed itself would be ignored. The prospect that “in whole or in part, any provision of a declaration” could be changed would have manufactured uncertainty for tens of thousands of property owners in associations in every corner of the state. That uncertainty would have destroyed property values across Virginia, all in an effort to meddle in a lawsuit involving Lake Holiday, the Bemis Case. That case is now before the Virginia Supreme Court.

That SB 1489, like SB 6016, was nothing more than an attempt to tip the outcome of an active court case is beyond dispute. Shortly after SB 6016 died in the Virginia Housing Commission on 6/26/08, Bob Diamond and Todd Sinkins went back to work to try to change the law to tip an active court case in favor of their clients. Diamond represents Miller & Smith in the Bemis Case, and Sinkins’ firm, Rees Broome, was Lake Holiday’s initial counsel in the case before withdrawing.

The changes Diamond and Sinkins came up with are outlined in a July 1, 2008 memo to “Interested Parties.” This memo proposes even more far-reaching code changes than Vogel included in SB 1489. This proposal and Vogel’s bills share a central theme: to permit re-writing property deeds without the consent of owners Diamond’s description of honoring the terms outlined in a deed to amend it: “impractical.” We can apply Diamond’s reasoning thusly: If a small property owner has rights granted in a deed and Miller & Smith, one of the largest developers in the state, doesn’t like that, well, that’s simply “impractical” and the law needs to be changed. In his testimony to the Virginia Housing Commission, Sinkins characterized re-writing owners’ deeds over their objection as a “minor” change.

Diamond and Sinkins offer up this contradictory message acknowledging the impact of their proposal:

Although these changes may have an impact on the Lake Holiday project, we do not think that they can affect the outcome of the current litigation.

Perhaps they claim to believe that their proposed changes can’t affect the outcome because they know that an attempt to retroactively change vested property rights is unconstitutional and won’t pass careful scrutiny. It’s about time that Diamond and Sinkins learned the Code of Virginia is not their personal rule book to deliver the whims of their clients.

In late December, 2008 the Lake Holiday board met to consider the changes Vogel would later introduce in the Virginia Senate. Despite a dissent from 1 board member, the Lake Holiday board approved pushing the legislation to solve their “problem.”

Any claim that Vogel’s effort is anything but an effort to tip the outcome of an active court case doesn’t pass the laugh test.

Now that SB 1489 is dead, it’s important to reflect on the future. That future rests squarely with the Virginia Supreme Court. Backed by hundreds of years of Virginia property law and countless decisions from the state’s highest court (including 3 on point cases, the most recent of which was decided in January 2008), the Bemis plaintiffs take the position that their property rights and obligations are to be found – and can only be found – in a properly recorded deed in the chain of title to their individual properties. The Bemis plaintiffs are fully prepared to honor those deed obligations.

Lake Holiday has a history of collecting fees and dues far above those authorized by the applicable deeds. Its officers and lawyers have known about the unauthorized collection for some time. That creates a sticky and serious legal problem. To solve that problem, Lake Holiday would like to unilaterally change those deed obligations. That’s why Vogel, following the direction of Diamond and Lake Holiday, tried to change Virginia law to permit re-writing property deeds.

Fortunately, they failed a second time.

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This Has To Stop

Whatever one may think of John Martel, he consistently manages to come up with great one-liners. Mind you, they’re not going to be heard on the big movie screen anytime soon. They’re just pithy observations on the problems at Lake Holiday. We took the title of this post from his remarks on the issue of ordering tote bags for new owners for the Welcoming Committee.

Too many bags were ordered at a price double what they should have cost because the wrong person ordered the bags.

Wayne Poyer described the mix-up:

A batch of bags was ordered which, based on the rate of people coming into the community, it’s going to last about 40 years.

As Martel said: “this has to stop, this has to stop.” We’ll go out on a limb and guess that the Welcoming Committee only welcomes new homeowners and not new membership lot owners with one of the too many totes ordered at an exorbitant cost.

The budget review was made a little more difficult when it was discovered that one of Mike Kilmer’s staff incorrectly coded an expense item as an income item. Robin Pedlar thought Kilmer’s firm was “overpaid.” According to Martel, the distribution of work between the LHCC office and Kilmer’s firm has created problems. His view:

It’s hard to sort out who’s doing what to whom.

Kilmer’s firm is paid $4250 per month (an annual rate of over $50,000), and the board was reviewing other cutbacks to balance the budget at the May 15th budget meeting. Despite that, Pat Shields didn’t think that meeting was the appropriate time to address the value of Kilmer’s services.

In the video of overpaying for too many tote bags, Robin Pedlar worried:

If this is indicative of how phony all the numbers could be, it scares me.

She was not alone in her concern about sloppy accounting. Wayne Poyer asked somewhat rhetorically:

How bad is our accounting?

Let’s look at one area, the relationship between delinquencies and receivables. In our videos 2008 1Q Delinquencies and How Bad Is Our Accounting, Treasurer John Martel gave the numbers on delinquencies: 114 homes (including trash assessments), 70 water/sewer lots, and 242 membership lots. Based on LHCC’s published assessment rates, this is a monthly delinquency of $30,748.08. Yet the difference between LHCC’s reported accounts receivable in March and April of 2008 is only $9,299.73. If the delinquency rate is actually that high, why didn’t accounts receivable go up by a larger amount? If it’s not that high, why is the board over-stating the delinquency rate and budgeting based on this over-statement? As Poyer himself remarked, the delinquency report “just doesn’t pass the nonsense test.”

Budget-related videos from this meeting also include a discussion of getting foreclosing banks to pay their dues and a brief review of Kilmer’s role (which includes a little spat between a frustrated Martel and Suzy Marcus). A few unrelated topics were addressed after the budget review: creating the nominating committee; handling road violations, in which directors acknowledged that the roving patrol is not authorized to stop alleged violators; and relisting lots for sale with Oakcrest.

If you find it odd that in all this budget talk, the name of Steve Locke doesn’t come up much, we do as well. Steve’s resume says he’s a certified financial planner and a former member of the Financial Management Task Force. He had little to say about changes to the budget, a topic that is very relevant to his background and experience. What is the point of serving on the board if you don’t have much to say on the topic most directly related to your background or work experience? Congratulations, Steve. You’re our Silent Sitter for the May budget meeting.

With all of the excitement about accounting and budgets (a subject that caused Robin Pedlar to comment a little past the half-way point of the budget meeting that “we’ve got to move faster or I’m going home”), we realized that we neglected to announce our Silent Sitter winner for the April 28th meeting. The most important topic covered at the April 28th meeting was a proposal to refinance the clubhouse balloon note. In a meeting where directors openly acknowledged they breached their fiduciary responsibility, Suzy Marcus sat in almost total silence. She neither objected to the characterization expressed by several board members that the board (of which she was a member) had in fact breached its fiduciary responsibility or raised any concern about the cost to fix that mistake. Important issues require the input of all board members. Congratulations, Suzy. You’re our Silent Sitter for the April meeting.

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Bye, Bye, Bleckster

Rick Bleck, who did not meet the 1 year ownership requirement for nomination set forth in LHCC’s bylaws and was invisible on the campaign trail but was elected anyway, resigned from LHCC’s board on January 30th. Bleck, aka the “Bleckster” (see his own email address), sent a resignation email to Wayne Poyer. He resigned essentially the day after attending the January board meeting which included an Executive Session focused on LHCC’s litigation issues. He wished the remaining board members “Good Luck to all with this one” and with that, he was gone. He may not have left a lasting impression, since GM Ray Sohl mistakenly identified him as “Bill Bleck” when forwarding his resignation email. Maybe the community that allegedly elected Bleck to the board didn’t leave a lasting impression on him either. In 2 instances he referred to Lake Holiday simply as “Holiday.”

We suspect Bleck was duped to keep his name on the 2007 ballot even though he didn’t meet the nomination requirement to block the election of Bill Masters. Masters has been critical of the board, and the board is intolerant of criticism, however justified. Caught in a place where he would not be able to make a meaningful contribution or independently become familiar with the challenges facing Lake Holiday, Bleck would have little more than a marginalized role on LHCC’s board. However, Bleck himself opted to take on this marginalized role by allowing his name to remain on the 2007 ballot after he learned of a legitimate challenge to his nomination. Although he put himself in a difficult position, he should have stuck it out.

At the March 27th board meeting, LHCC’s board decided to appoint Bleck’s successor. The deadline for expressing an interest to serve was March 18th, and only 2 prospective candidates responded by that date: Bill Masters and Mike Sweeney. Just as with Bleck’s nomination, there’s a big problem here. Mike Sweeney is the husband of Robin Pedlar, one of LHCC’s current directors. LHCC’s Articles of Incorporation contain this simple sentence:

A Lot shall not have more than one membership, but the single membership shall be shared by all owners of the lot.

Since Robin Pedlar and Mike Sweeney jointly own only 1 property at Lake Holiday, there’s only 1 possible membership in LHCC to go around. But to serve on LHCC’s board, one must be a member. Robin Pedlar is already serving on the board, so she must be a member. That leaves no membership for Mike Sweeney. Case closed. Not so fast. Wayne Poyer said he reviewed this issue “quite thoroughly” and that usually translates to getting a legal opinion to trick trusting owners that this is somehow, someway legitimate. Here’s that legal opinion from Juan Cardenas of Rees Broome as read by Wayne Poyer:

Assuming Mr. Sweeney is a member of LHCC and in good standing, he is eligible to serve on the board of directors per the Bylaws. The fact that he is a co-owner of a lot with Ms. Pedlar does not invalidate his eligibility to serve, nor would it affect his right to vote on matters as a member of the board on matters before the board of directors as the Bylaws do not regulate, much less prohibit, the possibility of two or more co-owners of one lot serving on the board at the same time. The Bylaws make clear that Mr. Sweeney and Ms. Pedlar share voting rights with respect to their lot as members of LHCC on matters before the membership, as only one vote is assigned to each lot regardless of the number of co-owners. But again, this point does not affect the issue of eligibility to serve on the board. I hope this further explanation is helpful. (emphasis added)

Bill Masters challenged whether Mike Sweeney is a member of LHCC, and he specifically referred to that statement under LHCC’s Articles of Incorporation. Cardenas avoided all mention of the Articles and instead tried to focus attention on LHCC’s Bylaws because there’s no way around the unambiguous statement in the Articles. His opinion has a more fundamental flaw. He assumed the very result he should have been asked to evaluate, whether Mike Sweeney is a member of LHCC. Given that Robin Pedlar is an existing director and thus a member, LHCC’s Articles make clear that Mike Sweeney is not a member of LHCC. Therefore, as long as Robin Pedlar is using that membership by holding office, Mike Sweeney is ineligible to serve on the board. We suspect that Mike Sweeney himself knows that this arrangement doesn’t pass the laugh test. That’s why he put the onus back on the board and expressed the hope that the board “reviewed all the documents” and would act in “good conscience.”

We also wonder why Cardenas filled his opinion with arguably true statements that are totally irrelevant to the real issue of whether Mike Sweeney is a member of LHCC. Did he do this as a slight-of-hand trick to draw attention away from his circular logic? Did Wayne Poyer accurately frame the question to Cardenas or read Cardenas’ entire response to the board? We may never know. What we do know is that the LHCC board will blatantly violate its own governing documents without blinking an eye.

During the vote to appoint Bleck’s successor (the first part of which is covered in the above video and the second part here in Breaking the Rules Pt 2, Robin Pedlar abstained and gave no reason for her abstention. We doubt that she needed to explain to other directors that Mike Sweeney was her husband. However, given that Robin Pedlar and Mike Sweeney have different surnames, that fact may not be obvious to the rest of the community. She had a tough choice: be silent or make it crystal clear that she is Mike Sweeney’s wife and explain her abstention, which would have only drawn attention to the illegitimacy of Sweeney’s appointment – attention that clearly LHCC’s directors did not want. Given a tough choice, a Silent Sitter will usually choose to keep silent. Congratulations, Robin Pedlar! You’re our Silent Sitter award winner for the March 27th board meeting.

Robin Pedlar is our 6th Silent Sitter award winner, and the 2007 board is about half-way through its tenure. We thought it was time to create a Silent Sitter page honoring all the winners, with a little background on the award itself.

If your own wife can’t openly vote in favor of whatever you’re trying to do, there’s a problem with it. And she knows it.

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Silent Sitters Face The YouTube Era

One of the hot issues at the February 25th board meeting was videotaping board meetings. In fact, the issue made it on to the agenda for that meeting. However, when the board reviewed changes to that agenda, the videotaping topic wasn’t changed or dropped. It was just silently skipped during the meeting.

If the board wasn’t prepared to discuss videotaping, homeowner John Platt certainly was. Platt gave a nearly 10 minute presentation on the perils of videotaping that ranged from behavioral control to breaching personal security and identity theft. We can sum up Platt’s message in 2 words: stop videotaping.

Videotaping open meetings fosters good governance. Governance at Lake Holiday extends to committees and task forces, which are the principal advisors to the board. Together, the board, committees, and task forces make decisions that affect about 2700 lots and approximately $210 million of property value (based on February 2008 Frederick County tax valuations). The board, along with committee and task force members, opted to take on the responsibility of governing their community. That authority comes – and should come – with scrutiny.

Videotaping also helps to address something that LHCC Treasurer John Martel acknowledged:

We also have a lot of baggage that we have to overcome.

Homeowner Bill Masters records the meetings. Both Wayne Poyer and GM Ray Sohl have publicly acknowledged that Masters has a right to make these recordings. In fact, at the December 27th meeting, LHCC’s directors briefly discussed recording board meetings on their own.

Getting videos on the web quickly takes some work. To further his goal of fostering open governance, Masters gives the raw video tapes to us to take the most relevant or interesting portions of these meetings and get them on the web as quickly as possible. In many instances, we have video clips of important discussions available on YouTube before LHCC releases a written synopsis of what took place at a meeting. Anyone, including LHCC itself, is free to embed the codes to display any of these videos on a website. The videos are provided at no cost.

Some LHCC directors complain that we edit videos or provide clips that are not representative of what took place. That’s trying to bundle an obviously true statement with a crazy one, hoping that people can’t tell the difference between the two. A typical board meeting takes place over several hours, and the clips we make are no more than 10 minutes long. We don’t set or control this limit; it’s set by third-party video sharing services. It’s self-evident that we edit them. That much is true. In every case where we make an edit, we insert a clearly visible transition effect. If you don’t see a clearly visible transition effect, the video you see is an unmodified video stream.

The claim that something is unrepresentative or taken out of context is the crazy part. Lake Holiday’s board meetings are divided into tabs, as the agenda for the 2/25 meeting demonstrates. These tabs are discrete topics that often have little to do with one another. For example, on the 2/25 agenda, Tab 14 involves a roughly 3 minute discussion about selling a 1991 Ford pickup for $150. The very next tab is a roughly 26 minute discussion of a policy to fill board vacancies. One does not need the context of the old truck sale to understand a policy on filling board vacancies.

The videos we present are clips from a larger meeting. Given that the videos are made available at no charge, technological and practical considerations make it impossible to deliver a 3 hour watch-on-demand meeting video in rural Virginia. YouTube, backed by the multi-billion dollar resources of Google, doesn’t do it. Hollywood movie studios don’t do it. Those that attribute sinister motives to Masters or us for failing to deliver community association videos in their entirety for free display their technical ignorance. Maybe their motives are on display as well.

Dividing meetings into clips allows a viewer to watch what he wants, when he wants. We are not extracting unrepresentative comments from the video when there were opposite or contradictory comments readily available. When we quote John Martel as saying that “we also have a lot of baggage that we have to overcome,” he did not contradict this assertion before or after making that remark. In fact, after Pat Shields expressed an opposing point of view, Martel repeated his position more firmly and succinctly: “Lake Holiday has baggage.”

There are a lot of benefits to providing videos on the web. The majority of Lake Holiday owners do not live at Lake Holiday, so internet-hosted videos enable more owners to observe how their community is governed. Very few owners actually attend meetings, and those that do typically do not stay for the entire meeting. We’ve uploaded more than 100 videos to YouTube, and these videos have been watched over 4000 times. That’s roughly the equivalent of 40 people attending 45 minutes or more of every board meeting for a year. Since board meetings frequently draw no attendees outside open forum, videos create community involvement.

Many of our videos are informative, such as our series on the dam or the maintenance building (Dam Pt 1, Dam Pt 2, Dam Pt 3, Maint Bldg Pt 1, Maint Bldg Pt 2, and Maint Bldg Pt 3) available by clicking the nearby thumbnail or visiting our Videos page). Most videos show LHCC’s directors conducting routine business, such as reviewing the Treasurer’s Report or the GM’s Management Report. Unfortunately, too many videos show the board engaging in what we believe is inappropriate behavior or making a bad decision. A dramatic example of this is the Keep It Over Here Punk video, featuring the antics of director Steve Locke and Bob Fraser. In all cases, owners get to watch their board in action and form their own opinions. If board members find that their conduct appears unflattering when watched on video, the proper course is not to try to pull the plug on videotaping; the proper course is to change that conduct.

As a result of watching board videos, we’ve observed too many board members sitting in silence and then unanimously rubber-stamping a motion or resolution. Typically, we’ve given our Silent Sitter award to a director that we thought was especially passive. During the February meeting, directors Noel O’Brien and Robin Pedlar said very little. However, Noel O’Brien made a strong statement in favor of installing guard rails on West Masters Drive without delay. In light of the recent serious accident on that road, O’Brien is on the right track. Pedlar also voted against the recently adopted policy on filing board vacancies, an unnecessarily cumbersome procedure. These are positive steps, but we think they need to do more. Perhaps some directors are realizing that passivity is not such a good thing after all. Sorry, Robin and Noel. No award for you this month.

We’ve never given an officer our Silent Sitter award. In award terms, LHCC’s officers get off easy, since several have regular responsibilities at monthly meetings that force them to speak up. Sometimes, in the course of that speaking up, officers say things that hurt Lake Holiday. At the February 25th meeting Wayne Poyer complimented John Platt on his “excellent presentation” focused on putting an end to videotaping. Poyer offered this praise despite Poyer’s numerous acknowledgements of Masters’ right to make those recordings. We certainly support Poyer’s allowing Platt the time to make his point. But fueling Platt’s views, especially since they are contrary to opinions that Poyer has expressed, only increases political divisions at Lake Holiday. Poyer should have firmly conveyed that open governance, however uncomfortable it may be at times, is a good thing, and that it is supported by the LHCC board.

For keeping silent on this point, Wayne Poyer is our Silent Sitter for the February 25th board meeting. Congratulations, Wayne! You’re a Silent Sitter!

Making videos of public meetings is an issue that has been closely analyzed outside of Lake Holiday. In March of 2007, the New Jersey Supreme Court decided a case that raised issues similar to those in the discussion of videotaping at Lake Holiday. In the NJ Supreme Court case, Robert Wayne Tarus, a 15 year resident of the Borough of Pine Hill, was blocked from videotaping public meetings. Tarus was a frequent critic of the Borough Council. The court decision referred to remarks the mayor made to a local paper about Tarus: “If he was a decent resident, we would have no problem.”

The court also discussed the Borough’s concerns about how Tarus would use or edit the videos he made:

Finally, during oral argument before this Court, defense counsel for the Borough explained that a primary concern expressed by Council members was that ‘this political opponent . . . was going to take tapes and take them back to his basement and edit them around and turn us all into monsters.’ Thus, by their own admissions, when they blocked plaintiff from videotaping the meetings, the Mayor and Council acted on an impetus that found its genesis, to some degree, in animus against the plaintiff. In that context, we find those actions to be arbitrary and unreasonable.

The concerns that the Borough expressed against Tarus are nearly identical to those that LHCC board members have expressed about Masters’ recording the meetings and our editing the videotapes.

Tarus won his case, and the NJ Supreme Court ruled:

The law has embraced the undeniable fact that modern electronic devices are silent observers of history. These legal foundations support a finding that there is a common law right to videotape.

The NJ case also addressed the concerns expressed by John Platt that videotaping has a negative impact on other meeting attendees:

Video cameras and recorders have become a commonplace item in our every day life. They are a common security device and confront us at the bank, in stores and even in apartment houses. Exposure to video recording of all of us is a normal occurrence on the streets and in public gatherings such as athletic contests and sporting events where participants and spectators are under constant television surveillance. Such exposure is actively sought by all those running for public office in order to place their image and their ideas before the voters. … Today, hand-held video cameras are everywhere — attached to our computers, a common feature in consumer still-shot cameras, and even built into recent generations of mobile telephones. The broad and pervasive use of video cameras at public events evidences a societal acceptance of their use in public fora. … So too, we are not persuaded by fears that the use of video cameras in non-judicial settings will generate intimidation and harassment. … Trepidation over the effect of video cameras in public meetings is overstated. The prevalence of video cameras in society and the open nature of public meetings militate against such hyperbolic concerns. Although some citizens may be fearful of video cameras, we find that consideration insufficient to deny the right to videotape. … The legal foundations described above, with roots wide and deep, offer a glimpse into our evolved understanding of the right of public access and support our finding that there is a common law right to videotape.

Writing for a unanimous NJ Supreme Court, Chief Justice Zazzali referred to the ideas of Jeremy Bentham, Patrick Henry, and James Madison, offering these powerful words:

In short, our civic forefathers have long recognized that spores of corruption cannot survive the light of public scrutiny. … Openness is a hallmark of democracy — a sacred maxim of our government — and video is but a modern instrument in that evolving pursuit. … Arbitrary rules that curb the openness of a public meeting are barricades against effective democracy. The use of modern technology to record and review the activities of public bodies should marshal pride in our open system of government, not muster suspicion against citizens who conduct the recording.

Perhaps Poyer was less than firm in sending that message because openness and hallmarks of democracy do not really enjoy the support of LHCC’s board. Perhaps the disappearing agenda item on videotaping will resurface, and LHCC will seek to block such recording by a policy resolution. We hope not. Whatever happens, watch it play out on YouTube.

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Now Is Not The Time To Be Passive

We’ve finally gotten around to choosing the Silent Sitter for the January 28th board meeting. The meeting was held on a Monday, and it was some time before we could review the video tapes to pick a Silent Sitter award winner.

On the next Wednesday night, before we had reached any decision, LHCC reported that a director resigned. Oddly, it did not announce who resigned. The next day LHCC confirmed privately that Rick Bleck, who did not meet the 1 year ownership requirement for nomination set forth in LHCC’s bylaws and was invisible on the campaign trail but was elected anyway, had resigned but still did not publicly identify the resigned director.

Just who resigned was a hot topic on The Summit Advisor two weeks after Bleck resigned, and posters there repeated what we had announced earlier. Just before the 2/23 Round Table, LHCC updated its website with what was by then stale news, identifying Bleck as the resigned director. After all, there’s no sense being secretive about something that is common knowledge. It’s peculiar that LHCC would take so long to keep the community informed on basic governance issues. Directors have come and gone before.

Bleck’s resignation made us re-think our guidelines for the Silent Sitter award. After much reflection, we realized our original concept for the whole award needed an overhaul, or at least a clarification. Here’s what we came up with: to win the Silent Sitter award, a contender had to still actually be a director. A fundamental point, to be sure. But given that Bleck, a solid contender for another Silent Sitter award was no longer a director, that would mean he couldn’t win. If he had won, that would have meant that one director would have won 3 out of 4 Silent Sitter awards, and the only won he failed to win during that award-winning stretch was the meeting he skipped!

Even without Bleck, there were several solid contenders for the Silent Sitter award on January 28th. We’re getting the sense that LHCC directors love our Silent Sitter award. So many of them seem to be working overtime to win it. Suzy Marcus, winner of the award for the December meeting, had little to say. Specifically, she had nothing to say about her Realtor Outreach scheduled for the November meeting that she missed. It’s never been mentioned since.

Noel O’Brien, another potential winner in any given month, also had little to say. However, Noel did introduce a motion to move the regular monthly board meeting from Monday to Tuesday in order to give board members more time to review their board books. We support the notion of board members having ample review time, but by itself it’s not a meaningful improvement. If board members remain Silent Sitters, increasing review time is meaningless. Voting down Noel’s motion to switch board meetings from Monday to Tuesday took about 6 1/2 minutes.

By comparison, discussion of LHCC’s new proxy policy took about 3 1/2 minutes. The proxy policy is far more important than deciding whether to meet on Monday or Tuesday. Yet it got about half the time in a what was more than a 2 hour meeting. Generally speaking, when you have an important issue covered in 3 1/2 minutes, press the pause button on the video and look around. You’ll find your Silent Sitter.

We’ve covered why LHCC’s proxy policy is a bad idea. In the discussion in December, Jo-anne Barnard favored giving voters increased opportunities to express their opinions:

…I think we should provide the members every opportunity to vote whatever way they want.

However, despite our post and her initial opinion, Jo-anne voted in favor of LHCC’s new policy – which restricts how voters express their opinions. The policy was adopted at the January meeting. The policy restricts voter choice by requiring proxies be directed, something that is not in either LHCC’s Bylaws or Virginia statutes. It’s inappropriate for LHCC directors to effectively amend LHCC’s Bylaws by passing a board resolution.

The proxy policy also helps perpetuate the difficulty that Membership Lot owners have to revoke absentee ballots, a difficulty that proxies can fix. Restricting voter choice and making it hard for Membership Lot owners to revoke absentee ballots divides the community. Jo-anne pointed out in December that restricting proxies could be challenged, but directors didn’t vote on the proxy policy at that time. When it came time to vote in January, Jo-anne brought up none of this. Then again, it only was a 3 1/2 minute discussion of an important issue. Congratulations, Jo-anne Barnard! You’re our Silent Sitter for the January 28th meeting.

On a humorous note, one contribution Jo-anne did make at the January 28th meeting was attempting to correct Steve Locke after he mixed up the names “Platt” and “Pratt.” At least everyone had a good laugh about the incident.

Many in the community probably held high hopes for Barnard’s election in October. She’s a lawyer with an impressive resume. However, we understand that she didn’t attend the one candidates’ forum LHCC held before the 2007 election, and she skipped the 2/23 Round Table, an event all board members were asked to attend. We wonder if she’s reluctant to answer questions from property owners. Answering questions from those owners comes with the territory when you seek and win a board seat of an organization serving 2700 properties.

Based on her background, we assume that Jo-anne Barnard is familiar with the problems brought about by passive board members. One relatively recent example is the collapse of Worldcom. In June 2003, former US Attorney General Dick Thornburgh issued the Second Interim Report in the Worldcom bankruptcy proceedings. In his report, Mr. Thornburgh criticized board members who approved board actions:

with little or no information and almost no inquiry. A board vigilant about fiduciary duties would not have been so passive.

His report pointed to a “culture and internal processes that discourage or implicitly forbid scrutiny and detailed questioning” and the lack of “meaningful deliberation or analysis” by Worldcom’s board as big factors in Worldcom’s collapse. Mr. Thornburgh concluded:

In short, at a time when the Board should have been more assertive, it instead became increasingly passive and submissive.

To be sure, Lake Holiday is not Worldcom. Sometimes, examining the same problem on a dramatically bigger scale helps make the possible impact of that problem more clear. Passive board members weren’t good for Worldcom. Silent Sitters aren’t helping Lake Holiday.

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The Denial Game

We previously wrote about the near-scuffles at the February 23rd Round Table. There’s a discussion of these shouting matches on Bill Master’s website, The Summit Advisor. One of the multiple posters in that thread uses the anonymous ID Guest47.

Guest47’s posts aren’t accurate on the basic facts of what took place at the Round Table. Fraser was not “countering Master’s allegation that the board and committees engage in secret meetings” on the clip, as the poster contended. Fraser’s first outburst occurred after Steve Locke attempted to ask audience-member Masters a few questions in what looked like a scripted event. Fraser’s second outburst occurred after the meeting had concluded. Both of these facts are clear on the video. At one point, Masters did ask a question – not make an allegation – about his concerns that the board was having private discussions, but this question and the response concluded without incident – almost 1 hour after Fraser’s first outburst. Since Guest47 can’t even get basic facts straight, we’re not going to devote a lot of energy to unscrambling his post.

Bill Adams confessed to us that he regularly posted on Master’s website under this exact same anonymous ID, Guest47. The combination of these posts and Adams’ position in the community (he’s Chair of the Buildings and Grounds Committee and serves on the Activities Committee) prompted us to reflect on Adams’ conduct and prior writings.

There is a larger point in scrutinizing the opinions of these individuals, and it’s a point with which the Lake Holiday community desperately needs to come to grips. Lake Holiday has a widespread problem, and it is so damaging the community that if it’s not fixed, it will destroy it. What is it? A lot of people are playing a game of denial.

In his posts, Guest47 complained that Masters is a “constant nuisance” and has a website that serves “the lowest level of intellect whose purpose is to provoke others….” – and then he proceeded to praise Fraser’s conduct. Every reasonable person who watches the Keep It Over Here Punk video (also on our Videos page) will say that the behavior of Locke and Fraser was designed to provoke. But Guest47 denies this reality.

For a period of time Bill Masters allowed Bill Adams to serve as the editor of The Summit Advisor, and as Adams himself stated in October 2005, he wrote “most of the Advisors’ articles.” In that capacity Bill Adams often was highly critical of the conduct of LHCC’s board. Here are a few highlights.

In July 2006 Adams wrote:

Leadership at Lake Holiday has a history of bad decisions.

He went on to list a dozen bad decisions to support his point “in hopes of awaking some determination for improvement.” We calculate that the cost of these bad decisions exceeds millions of dollars.

Just a short time later, we distributed a petition for a special meeting to remove the majority of LHCC’s board, and Bill Adams signed this petition calling for the removal of then President Chris Allison. He added the notation on our form: “Regretably [sic], this action is necessary.” Regarding our petition Bill Adams wrote:

The petition itself does not seek to grant water & sewer expansion to Oqunquit lots at community expense as has been suggested. … The sentiment of the Board and its defendants is that the Ogunquit proposed replacements are pro-expansion and willing to commit community funds ($M’s) to that cause. We do not believe that to be an accurate assessment. While we cannot speak for the individuals (nor should the board) we believe their interest is more toward fixing some inherent problems with the board itself.

Adams supported fixing “inherent problems with board itself.” He saw residents facing a “disproportionate share” of expenses. He continued:

In any new development the Developer would incur the total costs of such amenities (along with roads and infrastructure) and would recover the expense via the sale of lots. Amenities are normally employed to attract buyers to the development. Instead, we the residents are contributing a disproportionate share to these capital improvements such as the clubhouse, gatehouse and bus stop. Ever get the feeling that…(never mind).

The unfinished thought from a person who otherwise has no problem expressing himself is denial taking over. Adams also took up the issue of the Utility sale. A portion of the proceeds from the sale of LHEUC’s assets was in the form of a contingent note stretching out 15 years. Of this contingent stream of payments from Aqua Virginia, Adams wrote:

…the 15 yearly payments of $78k are contingent on an aggressive new connection quota! In a declining housing market, we can probably kiss that $1.17M goodbye. We understand that interim hookup fees are also deducted from the $800k. At $8686* each, if 92 lots are connected, the utility company is a give-away. Free! Some deal!

Both we and Bill Masters have been critical of the collectibility of the contingent payment stream from Aqua and that LHEUC was sold too cheaply. As far back as August 2006, Adams expressed the same criticism – describing it sarcastically as “some deal!” Adams largely stopped his public efforts to foster change; we and Masters have not stopped such efforts because the governance problems that underlie these events remain unfixed. The fix for those unable to face reality: deny the validity of Masters’ points and label him a “constant nuisance.”

In October 2005, after the Court granted our petition to block LHCC from voting its own lots in elections, Adams wrote:

As hopes of passing the documents erodes, the board may be scrambling for ways to keep it alive. One hope may have been the 223 lot votes denied by the court. Was the board intending to use them to pass the documents? We may never know. Another hope might have been that a fair portion of the population would vote for the new documents. Receipt of mail-in votes may have dashed that hope as well. Nobody who I talked to is supporting the documents. With imminent failure at hand, the cancellation of the vote may have been to [sic] only alternative to a major embarrassment.

Adams’ statement that “we may never know” if the Board was intending to vote LHCC-owned lots is more of the denial game. LHCC’s board passed Resolution 2004-8 expressing its intentions in writing. We were not in Court on this issue based on speculation but rather on published statements. Hiding behind vague and inaccurate words is denial. Facing “imminent failure” LHCC canceled the September 2005 vote on new governing documents. Adams continued his criticism of these proposed documents, which he felt were:

…verbose and convoluted rules intended to keep lawyers employed. We could actually go out and enjoy the lake and amenities without worry that we would lose our rights. God forbid we ever need legal interpretation of existing rules like “no clotheslines”. Instead the misery lives on – Postponed until another angle can be contrived.

By May 2006 when substantially the same governing documents re-surfaced for a vote that June, Adams forgot about the “misery” and gave the documents back-handed praise, claiming they were:

more readable than earlier versions, with a nice cover page, uniform margins and paragraph numbering. … Many comparative reviews are possible, e.g.; with the existing documents, with the 40 “Recommended Changes”, and between versions on the revised documents. The feasibility and value of such comparisons is questionable, given the complexity and time frames.

Translation of Adams’ gibberish: The documents look pretty, they’re hard to understand, time is short, but I just can’t bring myself to tell you to approve them. When you have to resort to praising the deed to your property – perhaps your most valuable investment – because it has a nice cover page and uniform margins, you are in denial. Fortunately, thanks in large part to Bill Masters’ efforts to inform the community, approval of these new governing documents failed by a wide margin. To those denial gamers who claim that we are an unpopular lone wolf, pause and reflect: nearly 2 out of every 3 voters who voted against these documents joined with us and voted “No” by our proxy.

At the same time in a post entitled A Development Diary, Adams offered sharp criticism for recent board actions:

Adopting Goldberg’s rules, any unchallenged presidential motion automatically becomes a unanimous board resolution. Totalitarian Democracy is invented. Fearing litigation, the Board refunds all builder conformance fines imposed by the Architectural Committee. A revised Enforcement Guideline is created detailing every conceivable construction infraction and remedy. An ex-board president (who signed the Development Agreement) and a favored Builder are installed by the Board on the Architectural Committee without customary apprenticeship. The third Construction Supervisor and ArchComm liaison in a year quits along with a long standing ArchComm member.

”Totalitarian Democracy.” Those are very strong words to describe a community association. Despite those strong feelings, Adams could not muster the courage to explain that he was the “long standing ArchComm member” who quit over the problems he described. When you distance yourself from your own first-hand experiences, you are in denial.

Like Adams, we’ve been critical of the adoption of Goldberg’s Rules of order. But our website is labeled a “hate site.” People that play the denial game often lash out at those who challenge them to face reality.

Unfortunately, these examples of denial are not limited to Adams. In August 2006 Miller & Smith sent a letter to all property owners, stating in part, “Yes, we have special privileges….” (Our own reply has been posted here for everyone to see since that same time. For another twist on the denial game, review our comments on free water & sewer. As recently as the Saturday 2/23 Round Table, Wayne Poyer was still repeating the free water & sewer lie.) At around the same time former LHCC President Lou Einstman was allowed to post his own answer to Miller & Smith on the front page of The Summit Advisor:

When I left the Board in 2004, there was almost two million dollars in the bank. Today, the treasurer is predicting that we will be broke by September if we can’t get a loan or a line of credit. Where did all that money go? Maybe the changes that Heisey and Allison made in the way business is conducted weren’t so good for the community after all.

Einstman regularly attends board meetings, so he’s in a position to observe board conduct first-hand. On the responsibility of being a board member, Einstman wrote:

This isn’t a social position! Some of the present Board members seem to think that all they have to do is show up for the meetings. They don’t do their homework. They don’t understand the issues nor do they know how they want to vote on them. This irresponsible attitude is very discouraging.

Others have been similarly critical of board conduct. Former LHCC employee LeeAnn Stevens revealed that board members came to her asking for explanations of what went on in the boardroom or complaining that actions were taken without discussion. Both Einstman’s and Stevens’ sharp words parallel the criticism that both we and Masters have leveled at the board.

Our Silent Sitter award is certainly more colorful, but it is a legitimate attempt to draw attention to the very same problem that caught Einstman’s attention over 1 year earlier – but remains unaddressed. To those put off by our Silent Sitter award, take note: Einstman’s modest caution failed to correct the problem. In the spring of 2007, months before introducing the Silent Sitter award, we called Lou Einstman and asked to meet to discuss solutions to these and other problems. He declined our request. Instead of acknowledging our shared observation, Einstman’s response is to tell the critics to stop complaining and “get out.”

We’ve documented that Einstman supported the election of Rick Bleck, who did not meet the 1 year ownership requirement for nomination set forth in LHCC’s bylaws and was invisible on the campaign trail but was elected anyway. Bleck said very little while he was on the board, and what little he did say qualifies as T-shirt quote material. Promoting the election of people who “don’t understand the issues” when you’ve criticized that behavior as “irresponsible” is just part of the effort to conceal and deny legitimate problems.

Einstman was critical of the Heisey and Allison years but has supported Wayne Poyer’s leadership. Is it because Einstman was on the outside looking in during Allison’s tenure, and Poyer gives him special treatment? Watch the video below of audience member Einstman walking up to board member Robin Pedlar and carrying on a conversation while the board is conducting business. Watch the heads of most board members turn down to ignore Einstman’s inappropriate behavior, and Martel completely disregard what is taking place right next to him. Ask yourself if Wayne Poyer would have been that slow to react if Bill Masters had engaged in that conduct, or if Poyer would have responded in such a polite and restrained manner. Einstman plays the denial game for a simple reason: he’s now getting the insider perk of favorable treatment not afforded others.

Over and over again, it’s the same thing. At the January 26th board meeting, Treasurer John Martel was skeptical of spending $4650 for an automated device to measure the level of the lake. Our video Lake Level Pt 1 (also on our Videos page) makes this clear. At the February 23rd Round Table, a question from Bill Masters which expressed similar skepticism and proposed an alternative solution, was met with mocking giggles incited by Wayne Poyer and a sarcastic comment from Martel. We’re not aware of any proof to support Wayne Poyer’s claim that an automatic lake level monitoring system is required by the state for dam certification, and we doubt any board member had such proof before voting to approve this expenditure. We challenge them to produce such proof. Mocking Masters and others is the denial gamers trying to turn the tables on critics so they can continue playing their game.

In August 2006, “guest #47″ offered these comments on The Summit Advisor:

In defense of Bill Masters; Bill is a persistent advocate of frugal spending and accountability. As many know, he is not afraid to publicly challenge those in authority if they are not perceived to be acting in the community interest. Admittedly, Bill can become cantankerous when his questions and comments are evaded or dismissed. What he lacks in tact he makes up for with determination. To directors and proselyte with provincial follow-the-leader mentality he is a nuisance to be discredited and avoided. For those unaware, the brief utility board tenure involved his criticism of the unnecessary and expensive planned replacement of manholes, and the awarding of contracts to a friend of the utility board president’s without a bidding process. He was disparaged and removed from the utility board. After he left, many of his alternative ideas were adopted with no credit given.

Note the use of the word “nuisance.” Masters is a good kind of nuisance in August 2006, but in February 2008 he’s the bad variety. In the October 2006 election, Masters sought a board seat, seeking to try to remedy the same problems the he and Adams had been describing for years. He lost the election, not because of a failure to capture votes from residents, but because Miller & Smith was allowed to vote about 100 lots in Section 10 that residents had been told could not be voted. In fact, Adams himself wrote about the deed changes Miller & Smith made in July 2006, at about the very same time they were made. Presumably, he knew about the Miller & Smith ballot box deluge that would catch the community by such surprise about 3 months later. Instead of flashing warning signs, he discussed the deed changes in relatively unremarkable terms.

By November 2006, Masters had had enough of Bill Adams’ playing the denial game. Despite being allowed to edit the front page of Masters’ popular website, Adams turned on his neighbor by posting that the 2006 election outcome (which included Masters’ loss) was a vote for the “continued positive agenda” and that following the Annual Meeting, “everyone left happy.” He called the outcome “truly resident driven.” Shortly thereafter, recognizing his role was about to be eliminated, Adams resigned, perhaps hiding out as Guest47 ever since.

The clubhouse renovation was underway by the spring of 2007, and Adams played an important role in reviewing the security system for that project. To his neighbor Masters, Adams privately criticized the handling of the clubhouse security contract but confided that he was unwilling to publicly address his complaints because he did not want to jeopardize his insider involvement. Putting the past behind him and praising Adams’ contributions, Masters tried to coax a public discussion of these issues on The Summit Advisor, but Adams in a rare post under his own name responded that the topic was “not open to public debate.”

Adams, like Einstman and others, could not be weaned from the insider perks, so the denial game continues. The biggest insider perk: playing a role in spending over $2 million of your neighbor’s money every year. Plain and simple, it’s a power trip. It’s empowering to have the power to make expenditures and meet with professionals (e. g., high-priced lawyers and accountants) one otherwise would not be able to make or meet on one’s own, and especially so for those without the every-day responsibility of a job (Adams, for example, is a retiree). Loss of involvement is one price to pay for speaking up, and that’s a big force driving the denial game. In our Maint Bldg Pt 1-3 videos (you guessed it, they’re also on our Videos page), director Pat Shields said he would consult with Adams and Bob Fraser, one of the stars of Keep It Over Here Punk video, on this project. He didn’t say a word about consulting with Bill Masters.

Dr. Sanity, an MD and popular blogger who applies psychiatry to broader social observations, has written about people that are in denial:

When confronted, they become angry and usually contend that it is their confronter who has the REAL problem, not them.

Attacking us and Masters for making the exact same criticism that they have made is just the denial gamers attacking their confronter. We’ll anticipate one criticism to this post from the denial gamers, that it’s a personal attack. It’s not. All of our comments are focused on the political opinions and conduct of people engaged in governing their community or who are openly discussing their community’s governance. That makes their conduct and their opinions legitimate topics for public discussion and debate.

Guest47 criticized those who “anonymously attack and vilify people such as Poyer, Allison and Fraser.” Yet Guest47 hides behind an anonymous ID and attacks us and Masters. We make every post here, and make no secret of who we are and that the opinions expressed in these posts are ours. The absurdity of Guest47 criticizing anonymous attacks while he launches his own is self-evident. Guest47’s hypocrisy takes on a pathetic quality.

Dr. Sanity has also discussed denial as a “defense mechanism” that is “almost always pathological….” and set forth the factors that define a pathological defense:

  • the defense is used in a rigid, inflexible, and exclusive manner
  • the motivation for using the defense comes more from past needs than present or future reality
  • the defense severely distorts the present situation
  • use of the defense leads to significant problems in relationships, functioning, and enjoyment of life
  • use of the defense impedes or distorts emotions and feelings, instead of rechanneling them effectively

Judge for yourself how accurately the attack-the-confronter response and the characteristics of a pathological defense apply to Lake Holiday politics.

The denial game costs the Lake Holiday community dearly. Thousands of lives have been affected. Tens of millions of dollars of Membership Lot property values have been destroyed. People have been obstructed from enjoying their property for over 30 years. The obstruction has lasted so long that victims have died without ever getting a remedy. That these serious problems have been unaddressed for so long is a mark of shame for Frederick County and the state of Virginia. The governance problems that Adams and Einstman complained about are still unresolved. They’re the exact same problems that Masters has complained about and the exact same problems that we’ve complained about.

Instead of fixing these problems, the denial gamers say our blog is a “hate site” and Masters “cannot accept any ideas which are not his own.” The denial game continues, the problems thrive. As do the websites that seek to address the problems that have plagued Lake Holiday for decades.

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Suzy Marcus, Silent Sitter

Rick Bleck, who did not meet the 1 year ownership requirement for nomination set forth in LHCC’s bylaws and was invisible on the campaign trail but was elected anyway, was absent from the December 27th meeting. Rick was the two-time defending champion (if that’s the right phrase) in our Silent Sitter contest. In fact, up to this point, Rick has won every Silent Sitter award we’ve given, since we’ve only given 2. We’re not sure if he was busy or has a strong sense of fair play that required him to give another director the chance to win the Silent Sitter award.

Given a fair chance, somebody other than Rick Bleck did win our Silent Sitter award. That person is Suzy Marcus. Congratulations, Suzy! You’re our Silent Sitter for the December 27th meeting. Ever since we conceived copied the idea for the Silent Sitter award, we just knew that as long as she showed up, Suzy Marcus would put in a strong showing. The video clip Oops We Goofed (also linked in our post Twenty Certified Letters Later… and on our Videos page) pretty much includes Suzy Marcus’s entire contribution at a meeting that was well over 2 hours in length. In other words, if you don’t count silence, she didn’t contribute very much. When you consider that board members get their board books in advance of the meeting so they can show up ready and prepared to contribute, there’s simply no excuse for that much silence.

Suzy was absent from the 11/26 board meeting, at which she was responsible for presenting an “Open Discussion on Realtor Outreach.” Presumably, she was planning to lead a discussion of ways to help market the Lake Holiday community to real estate agents. When she was absent in November, this topic was moved to December. Perhaps she forgot about her own agenda item. We didn’t. Any benefits from a realtor outreach have now been delayed for 2 months. Sellers may not take kindly to a board that talks tough about a challenging real estate market but when it’s time for action only procrastinates. Chalk it up to having Silent Sitters on the board.

We do have sympathy for Rick Bleck, Suzy Marcus, and every future Silent Sitter. It’s very difficult to break out of the Silent Sitter role, as our video Only 3 For the DEC demonstrates. The DEC is LHCC’s Development Executive Committee, and this committee is where the important stuff happens. As Wayne Poyer explained in the following video, the DEC manages the relationship with Miller & Smith, the biggest developer at Lake Holiday. The DEC also handled the initial relationship with potential golf course purchasers and developed the Utility Extension Program (UEP). In other words, it plays a lead role in critical development issues at Lake Holiday before these issues ever reach the board.

After Wayne Poyer described the DEC at the board’s November organizational meeting, a number of directors jumped at the chance to serve on this important committee. Directors Noel O’Brien and Robin Pedlar, two directors who could challenge for a Silent Sitter award in any given month, wanted to serve. But alas, after offering the tease of what the DEC got to work on, Wayne Poyer explained that there are only 3 seats on the DEC. Without further explanation, these potential Silent Sitters who wanted to contribute just had to understand that Wayne Poyer, John Martel, and Dave Buermeyer would take over the DEC. Is it unusual that 3 men appear to just assume they should dominate this committee and 2 women appear to just understand that this committee is not for them?

Why aren’t Noel O’Brien and Robin Pedlar on the DEC?

We’re reminded of LeeAnn Stevens’ comments about former LHCC President Chris Allison’s attitude toward women:

Chris [Allison] has a real problem with women. We don’t have brains. Our opinions don’t matter. He’s not going to give her the time of day.

Get the Flash Player to see the wordTube Media Player.

Silent Sitters like Suzy Marcus and Rick Bleck have to overcome more than any general reluctance to contribute. They’re fighting against a highly concentrated leadership that blocks them from tackling important tasks.

As much as board members may claim to dislike our Silent Sitter award, the powerful few cherish the existence of Silent Sitters like Suzy Marcus.

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