The problem with our “alleged” bylaws?
(Read legal opinion - Attorney Daniel G. Barker)
- On January 22, 2024 there was town hall meeting to debate the changing of the Viewpointe bylaws. Attorney Michael Shupe and the firm he represents (the firm has represented Viewpointe for many years, possibly since the inception of Viewpointe) was attending to answer questions and to give his legal advice on the subject matter.
- At the beginning of the meeting Mark Flint, President stated that there would be no debate or discussion about the validity of the bylaws and that the bylaws being used are valid and legitimate, despite the fact that the bylaws are in the name of another development (Foot Hills Town Homes Association, Inc), not signed, dated or recorded. Attorney Shupe supported that viewpointe and Mark stated that if anyone wanted to question or contend the bylaws, they would have to seek a legal court action. No reply or comments were made to support the bylaws as being Viewpointe’s bylaws. *Note: Shirley Rupp (past board president) stated the alleged bylaws were created in 1978; but there has been no supporting claims/documents or information proffered. **Source: 2023 election minutes dated 3/21/23, section G, community update.
- Dan Deppen, a long time member of Viewpointe argued that the alleged bylaws are not Viewpointe’s bylaws and has stated his objection, for the record. Dan has made repeated requests for a copy of the bylaws with Viewpointe’s name in the document. To date, those requests (verbal and written) has been ignored, thus Mr. Flint’s opening statement.
- Arizona Statute does not require a nonprofit to have bylaws. But any attorney would agree that in order to carry out the business of an HOA with over one hundred members, it would be reasonably necessary to have bylaws in order to govern it. However, in regards to the IRS, it is required in order to preserve non profit status.
- The concern is that by using the alleged bylaws could have created several legal jeopardy’s for Viewpointe; any court cases where the document was used maybe at risk for motions to dismiss and any election at Viewpointe could be potentially deemed void. Or worse, we could lose our non profit status with the IRS.
- The fact that alleged bylaws document has been used in court actions represented by Attorney Shupe opened Viewpointe up for potential legal liabilities. It is apparent attorney Shupe may have been remiss in his fiduciary responsibilities and it could be argued that he is incompetent; in the best interest of Viewpointe, perhaps it would be prudent to remove him. Perhaps it would be prudent to prevent him from rewriting our bylaws document.
- It is Dan Deppen’s belief that a “new” set of bylaws need to be and should be drafted for the benefit of Viewpointe. That being said, the new document should be devoid of the word “revised”. Should any damage be caused to Viewpointe, the liability could be shifted to attorney Shupe and/or his associated firm. And a complaint could be filed with the Arizona Bar Association.
- A substantial debate was given by Dan Deppen at the town hall meeting about the proposed revisions to the alleged bylaws. Read below ...
Proposed changes to the draft to the “alleged” bylaws - specific areas of concern.
- Title to Bylaws - Bylaws vs Amended - As debated in the above section. The new document should be devoid of the word “revised”
- Section 4.02 - Number of board members allowed to hold over from year-to-year should be none (0). The concept of holding over is to allow for consistency in the workings of the HOA from year to year. On paper the concept looks good as long as the board make up is doing the right thing. But when the board is comprised of bad actors, the concept of holding over can make it impossible to remove them. The better option is to reward the board members who are good and vote them back into office each year. This will organically provide for consistency of good performance in the board make up. *Note: holding over also creates a timing issue; if the hold overs have not been on the board for one (1) year prior to, then it disqualifies them from holding over and they must run again. Case in point: 2024 election. Holding over is not in the best interest of the Association. There should be no holding over of any of the board seats.
- Section 4.01 - Dan Deppen argued the number of board members to form the board should be five (5), and not more. The reason is because if there are more than five, say perhaps nine, there would too many conflicts and opinions to manage; too many chiefs and not enough indians, so to speak. In practice Viewpointe would have a hard time filling the seats with only one hundred or so members. All of the boards Dan has served on has been five total board members.
- Section 3.02 - Dates, times, and nominations for yearly elections. Over the years, Viewpointe has been inconsistent with the schedule of nominations and election dates. This years election is earlier, February 11th. This creates confusion among the members and those who may want to run for a seat on the board; the alleged bylaws state the election shall occur the 3rd Tuesday, which is February 20th. Case-in-point, Mr. Deppen sent in a typed nomination for the 2024 election, thinking he was early. He was rejected, because he was told he missed the deadline. When in fact, he did not receive a nomination packet. It is no coincidence that this the 3rd year he has been excluded from the ballot. Mr. Deppen argued that the time frame for the yearly election should be the 3rd Tues of February, each and every year.
- Section 2.02 - Write in names on the ballots. Mr. Deppen argued the need for write in names for every ballot. In the event a candidate does submit a late nomination his/her name can at least be written in. This year the ballot did not have a write in provision. And, in Mr. Deppen’s case, he can not even write in his name. This totally eliminates him from the ballot, entirely. Write in provision should be allowed on every ballot.
- Section 4.05 - Regular HOA Meetings. Viewpointe has not been holding regular meeting throughout the year. Mr. Deppen argued it is necessary to hold regular meeting to conduct HOA business and for the members to attend, make suggestions, voice complaints, obtain information about the workings of the board and the management company. And, prevents the board from hiding from the members. There should be at least six (6), if not more meeting every year.
- Section 2.03 - Opening of ballots before roles close. Viewpointe has been reluctant to create an election committee and relay the names of the members who serve on the committee. In fact, they should ask any member who wants to serve on the committee to come forward. To open ballots early would open up the possibility to manipulate the election process. Mr. Deppen has witnessed this in other boards he has served on. There should be not opening of ballots before the roles have closed and ballots should be opened only at the annual election in view of the members.
- Section 2.03 - Voting methods - Electronic voting. Electronic voting is a bad idea, because the information can be manipulated and is not conducive to an accurate audit. Paper ballots is the only way to insure honestly and can be easily audited. The names of the members should be open to the auditing party to show who they voted for with each members signature. Electronic voting is a bad idea.
- Section 3.05 - Quorum and Adjourned Meeting. The quorum or number of members needed to change the bylaws should be twenty five percent (25%) of the total votes. There should be no reduction of the percentage in subsequent quorum attempts. Changing of the bylaws should be made to be difficult to preserve the rights of the members from easily being changed or reduced. If the percentage is lowered, the powers that be, can change the rights of the entire membership; unwittingly undermining the rights of the whole. Lowering the quorum below 25% is a bad idea.
- Section 3.06 - Order of Business. The new draft of the alleged bylaws removes this requirement. Mr. Deppen believes the “order of business” provision should remain, because it creates a consistent structure for process at every yearly election. The Order of Business provision, should remain.
- Seeking a second opinion for the drafting of our bylaws. Dan Deppen believes it would be in the best interest of Viewpointe in seeking a second opinion from an attorney, who is an advocate of the members vs a firm who represents management company’s who influence HOA’s. Mr. Deppen knows there is too much corruption in the HOA business to trust only one attorney. Especially with what’s been happening at Viewpointe over the years. Let’s do it right this time.
- At this point, Dan Deppen believes it is a bad idea to change the alleged bylaws with the persons who want it changed. Please, for now, vote “no”.
If you have a question or suggestion about this subject, please contact Dan Deppen.