SUMMARY: Over the past few days, word has trickled into this newspaper that MANY Big Canoe Property Owners have been denied Ballots and Eligibility in the upcoming election. A small group of very influential authorities have presented the information you will find below to the Board. The Board has refused to reissue voting privileges to the affected property owners, and refused to halt the election. Below is a copy of Records Request this Newspaper has just put in to the Board to try and get additional information. In the “Background” section I overview the legal aspects of the situation.
Update: Jill Philmon has already responded to the below request. See Email Chain
POA RECORDS REQUEST 2019-11–21(b): Governing Documents
Submitted by: david hopkins
Property Owner Lot # 4002
10887 Big Canoe; Big Canoe, GA 30143
themtnsvoice@aol.com / 706-265-0010 (office)
request date: Thursday November 21, 2019
To: Jill Philmon / Big Canoe General Manager
Cc: The POA Board
Cc: Jayne Hagan, Tim Moran
THE FOLLOWING REQUEST IS MADE PURSUANT TO:
Big Canoe Policies and Related Procedures; Procedure 156.2 (POA Member Access to Records); OCGA § 14-3-1601; OCGA § 14-3-1602; and OCGA § 14-3-1603. In the event that the records requested are not provided, then the records may be sought according to the methods proscribed in OCGA § 14-3-1604.
BACKGROUND:
As a Property Owner in the community, I take the sanctity of the voting process very seriously. I have been told that MANY persons in the community have been denied the right to vote in the upcoming POA Board Of Directors election due to their “past due” status in paying monthly assessments. I have seen conflicting sources of information regarding eligibility requirements. For example, below is a copy of a monthly Invoice I personally received showing a “DUE” date of October 25.
In a Conflict with the language provided in the monthly bills that POA Members receive, Article VI Section 7. of the 1988 Declarations & Covenants (“D&C”) shows the following language:
Date of Commencement and Proration of Annual Assessments. Due Date.
The annual assessments shall be fixed on a calendar year basis and shall be due and payable monthly in advance commencing January first of each year. Owner shall commence payment of the assessment on the first day of the month following the date of closing. Payment of the assessment shall be past due thirty (30) days after the date of billing. The Board of Directors of the Association may, in its discretion, permit such discount, if any, as it may from time to time establish for Members who pay their annual assessments in advance on an annual or quarterly basis.
In even further conflict with Both of the above documents (Property Owner Monthly Bills and the Covenant Language) the 2006 3rd Restated By-Laws have even different language, as seen below in Section 2.7:
2.7. Suspension of Rights.
If a property is shown on the POA’s books and records to be more than thirty (30) days past due in any assessment or charge, if any Member or Occupant of the property is in violation of the POA’s Legal Instruments, or if the voting rights for such property have been suspended, neither the Member nor the Member’s spouse shall be eligible to: (i) vote, either in person or by proxy; (ii) act as proxy for any other Member; (iii) be issued a written ballot or proxy; (iv) be elected to the Board of Directors; (v) vote as a Director (if serving on the Board of Directors); or (vi) use the Common Properties. In establishing the total number of eligible votes for a quorum, a majority, or any other purposes, such property shall not be counted as an eligible vote.
The practices of whichever POA Employees are responsible, has created a situation of legal jeopardy for the community regarding the Vote for POA Board Members currently underway. I myself am extremely disturbed that this election may be invalid due to certain property owners being unfairly excluded, the number of which is undetermined at this time, but I am told is MANY. The confusion generated in this process of multiple conflictions borders upon fraudulent and deceptive practices. One perfect example of even a fourth series of conflict is found in the language of: (1) the D&C which states that the fees commence on the 1st of each month, and not past due until 30 days later. (2) The Actual Billing conflicts this by stating that it is due 25 days after the bill is given. And of course, the Bylaws say that this only effects the right to Vote if you are PAST DUE by 30 days, meaning 30 days beyond the time at which you became “due” which according to the D&C would be 30 days after the billing commenced, which clearly indicates that 60 days (the 30 days to reach “past due” status + 30 days of existing in “past due” status)
Using October 2019 Billing as an example:
D&C: Billing commenced on October 1.
INVOICE: Billing was “Due” on October 25. (would be 1 day past due on Oct 26.)
D&C: Billing entered into the 1st day status of “Past Due” on October 30 (would make the bill “Due” on the previous day of Oct 29).
By-Laws: 30 Days “Past Due” and loss of voting privilege would being on:
- November 24 (if you accept the “Due Date” provided by the Invoice)
- November 29 (if you accept the “Due Date” provided by the D&C)
I am told that this information has been provided in great detail and argument by presentation to the Board, and their response is that basically, they don’t care, the Election will proceed.
CONCLUSION: This election is invalid since MANY property owners have ALREADY been excluded, and denied ballots, who should not have been. The Election needs to be immediately stopped, correct and legally understandable guidance be issued to property owners, and then the election reccomenced using legal methods, ensuring that all property owners are legally aware of their responsibilities,a nd that no property owners are illegally excluded from voting privileges.
REQUEST TO REVIEW AND COPY THE FOLLOWING DOCUMENTS:
ALL GOVERNING DOCUMENTS OTHER THAN THE ONES RELIED UPON AND REFERENCED ABOVE that the POA is relying upon to come to a legal determination that has caused them to already exclude certain property owners in this election,and deny them ballots. Please reference the specific sections of any full documents provided, which are applicable to this request, or in lieu, only provide the specific sections applicable to the request. If these documents are available online, or in digital format, you may respond to this request by simply sending me an email with a link to the documents, or an attachment of the documents to the email provided, themtnsvoice@aol.com. Again, reference to specific sections is required.
PURPOSE OF REQUEST:
I am making this request in good faith, for the purpose of reviewing the governance requirements for eligibility within the community in order to determine more fully if legal procedure is being complied with in this election. I expect full compliance, meeting legal time requirements.
SPECIAL INSTRUCTIONS, REMITTANCE AND CONTACT INFORMATION:
I request that where possible, records that are available in electronic format be compiled onto a Thumb Drive, CD, or other Electronic Storage Media for pickup by myself. If the documents are able to be transferred by electronic PDF document, then the records may be emailed to themtnsvoice@aol.com. Where electronic records are not available, I request that the records be copied or reproduced into paper format, and mailed to the address provided below. If this is not possible, then I request that inspection occur at a location that maintains adequate equipment necessary to making copies of records. In the event that only electronic records exist in a format that may require specialized software to access, then it is requested that the records be converted into written form for review and copying.
If there is a cost associated with Records Copying, please itemize and submit via return email so that payment may be tendered at the time of record inspection and copying.
I am requesting that this be made available within the time allotted by Big Canoe Policies and Related Procedures, and according to all other legal requirements as accorded by State and Federal laws.
Time is of the essence in this request, the Vote already being underway, and I request that the records be made available at the earliest allowable date allowed by legal requirement, which I believe is 5 business days from the date of this submittal according to OCGA § 14-3-1602(b) and (c).
Sincerely,– david hopkins / request date: Thursday November 21, 2019
10887 Big Canoe; Big Canoe, GA 30143 / Owner Lot # 4002
themtnsvoice@aol.com / 706-265-0010 < office / 8 am to 6 pm weekdays, or leave message.
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