Monday, July 8, 2019, will go down in the annals of history as a huge victory for Cooper Communities, Inc. and the Hot Springs Village Property Owners as Judge Herzfeld formally rendered his decision in the CCI vs HSVPOA lawsuit. Details of the decision are documented in the email below. This is an email from Judge Herzfeld to the attorneys on June 26, 2019, and is not the formal ruling. Judge Herzfeld was hoping that by making all parties aware of his formal ruling ahead of time, that CCI and HSVPOA might conduct negotiations which would include the POA agreeing to not to file an appeal. As this did not happen, the Judge issued his formal ruling today, July 8, 2019.
All attorneys involved have known since June 26 how the judge was going to rule. The attorneys would have been obligated to tell their clients, meaning CCI’s attorneys would have told CCI and HSVPOA attorneys would have notified the POA (meaning the CEO). Were the HSVPOA Board Directors notified when the judge’s decision was informally made available? Were the Directors notified on June 26 or was it on July 8th? Ask our Directors. We really don’t know the answer, but consider this to be a legitimate question.
Judge Robert Herzfeld’s June 26, 2019 email to the attorneys (retyped)
From: Robert Herzfeld
Date: June 26, 2019 at 5:59:59 PM MDT
To: (the attorneys)
Subject: Re: Cooper Communities v. HSVPOA 63CV-18-1513
Gentlemen,
I had intended to issue a formal ruling this afternoon. However, I have been the subject of a series of relatively unfortunate events and have had substantially less time to devote to crafting my opinion than I would have liked. I could be out of town for several days, and while I expect that I will be able to send out the opinion sometime in the next 10 days, in the meantime I assume on many levels that you all are like me and do not like to wait on news (be it good or bad). Therefore, I am giving you all a heads-up as to where I expect to come down. I’ll send out the opinion when I can – probably no later than the middle of July.
However, if your clients are able to reach an agreement moving forward which would waive the right to appeal, I can certainly get it out faster since I can enter a consent decree easier and faster than drafting an ironclad ruling which will withstand any and all assault at the Supreme Court (which is my current intent).
Thanks,
Judge Robert Herzfeld
The decision emailed to the attorneys on June 26
A. Whether Arkansas Code Annotated 4-28-218(e) is unconstitutionally vague. NO
B. Whether there is a need for an evidentiary hearing/trial regarding the term “Proper Purpose” from 4-28-218(e). NO The purposes stated in the letters to the P.O.A. are proper on their face.
C. What the term “inspected” means as applied in this case. That the Plaintiffs may inspect all of the requested documents (or any additional requested documents constituting books and records of the corporation (with an expansive view of “records” at any reasonable time using any technology of their choosing to aid in their inspections including but not limited to: pencils, pens, calculators, laptop computers, scanners, or portable copiers. It does not mean that the P.O.A. is mandated to provide the information in electronic format or make copies for Cooper. However, if the P.O.A. is truly concerned about the privacy of its members then it seems that providing the information in an easily usable format would be subject ripe for negotiations including a possible agreements limiting the use or access by third parties after they have been used by Cooper for their stated purposes – these restrictions are not required by statute.
Happy 4th of July!
Ironclad ruling
As Judge Herzfeld worked to craft in his own words, “an iron-clad ruling,” we hope HSVPOA will not appeal this case. That would be the commonsense approach by the POA. An appeal would be a tremendous waste of property owner money. This would be akin to throwing even more good money after bad, which in our opinion is what has already transpired. Please contact your Directors to let them know you do not support an appeal.
By Cheryl Dowden, July 8, 2019
Anonymous
07/08/2019 — 6:25 pm
The judge writes with quite a sense of humor but underneath it all, I sensed that he was pretty put off by what the POA was trying to do.
Dan Leathers
07/08/2019 — 6:51 pm
Common sense? POA??!? Mutually exclusive.
David Sintich
07/08/2019 — 8:32 pm
This Judge saw thru the phoney excuses and ruled wisely. He should be proud of his decision and his attempt to put a halt to this overstepping assault on our homestead.
Linda Van Scotter
07/09/2019 — 12:36 am
I agree
Sue
07/08/2019 — 11:33 pm
Booyah!!!
https://www.youtube.com/watch?v=Ks8s1hC9y7c
Linda Van Scotter
07/09/2019 — 12:35 am
Can we send the judge a thank you note?
Tom Blakeman
07/09/2019 — 7:02 am
The judge’s ruling is Great News. But let us not rest on our laurels just yet. The Board along with Nalley (and probably Weiss) will be Meeting in Secret as early today to contemplate their next move. That move, despite the ‘ironclad ruling’, could very well be to pursue appeal. The appeal could be for all or just part of the ruling. After all it’s not their money they are spending.
And remember, that board still has four voting members who have been part and parcel of the secrecy mission all along. We only have three members who are solidly for reform.
Appeal, whether it has a snowball’s chance or not, would provide continued cover for the heretofore bad actors to continue their quest for unwanted Village changes. Projects such as Lodge, Land and Homes, and God knows what else could move forward while an appeal continues to offer them a shield from view.
I urge each and everyone to write to the board immediately. Tell them it is time to accept the ruling and move on for the best interest of the Village. Tell them we know they may be considering appeal and Villagers will revolt if that is their chosen course.
Andrew Kramek
07/09/2019 — 7:09 am
Common sense would dictate that the CEO and BoD will now concede that their position on this one is 100% wrong. So likely their next action will be to waste thousands more of our dollars on an appeal. If nothing else, that will delay the need to open the books fully for a while longer – which appears to be their main objective. Makes me wonder just what is it that they are so desperate to hide.
Andrew Kramek
07/11/2019 — 7:28 am
How nice to be wrong about the POA for a change. It seems that there will not be an appeal asfter all. Although, looking at the weasel words put out it certainly doesn’t sound as if there is going to be compliance with the spirit of the ruling. Instead it just looks as if there are going to be more delays, obfuscations and evasions. Oh well, why should we expect better?
Tom Blakeman
07/09/2019 — 7:55 am
I just sent the following to board:
+++++++++++
Dear Board Members,
The word is out. The Village knows now that Judge Herzfeld formally ruled against POA on all counts. It is time to move on.
You all have known this was coming since June 26. But, of course, you continued to keep it secret. That fact by itself leads one to conclude you are seriously contemplating appeal. No doubt you are already meeting to decide what to do next.
Let me suggest again: Move On. Do Not Appeal all or any part of this judge’s ruling. To appeal will only further anger and incite a majority of Villagers. We do not need this.
Move On.
Sincerely,
+++++++++
Feel free to send a copy under your name to: boardmembers@hsvpoa.org
Judy Weatherly
07/09/2019 — 8:53 am
Great way to begin July! Now we can get many questions answered.
Everyone should send this judge a thank you!
Time for Property Owners to stand together, be strong and go to board meetings. At all times being respectful while giving common sense solutions to the Village’s problems.
stan kaleta
07/09/2019 — 9:18 am
As a home owner in the Village, my wife and I , after moving here from Ohio to retire, It is a great load of anxiety off our minds that this planned `Urbanization`will be , hopefully, furloughed and forgotten.
Suzan Rust
07/09/2019 — 9:18 am
How can we get an address to send a thank you letter to the judge?
Anonymous
07/09/2019 — 9:47 am
Suzan, great idea!
Judge Name: Hon. Robert Herzfeld
Circuit: Twenty-Second Judicial Circuit
Judicial Division: Division 4
Address: 321 N. Main
City: Benton
State: AR
Zip Code: 72015
Melvin west
07/09/2019 — 10:17 am
The ruling is just. We need to see “the books”
George Radcliffe
07/09/2019 — 10:28 am
It is long past time for changes that reflect the majority opinion of the Villagers.
The original 4 members of the Board should be ashamed at the way they deceived us in their election retoric.
Kirk Denger
07/09/2019 — 12:13 pm
I am going to the POA at 1PM today to see the CEO contract. All property owners are welcome to join.
Kirk Denger
07/09/2019 — 10:48 pm
I asked to see the CEO’s contract and was told that I would have to make an appointment with the Assistant CEO who was not available at the time. I came back a couple of hours later and talked with the Assistant CEO who was now available and was told by her that I would have to E-mail her to make an appointment even though we were talking to each other in person. She told me to email her with my request indicating the documents I wished to see and the purpose for which I wished to see them. I told her that I have come to see the CEO’s contract and that my purpose was that as a property owner member that my purpose is that I want to inspect it. She told me that I would have to say that in my E-mail to her.
Kirk Denger
07/16/2019 — 11:22 pm
The HSVPOA’s By-laws. Article XII, Section 4, H: ‘a member who is serving on the Board of Directors, or whose spouse presently serves on the Board of Directors, shall not serve on a Standing Committee, until after completion of service on the Board of Directors‘. These unlawful committees are not about conflicts or inconsistencies with Bylaws, these committees are and have been illegally established premeditatedly by criminal lawbreakers. With the sofar exception of Podawiltz, Campagna and Garrison, the HSV POA BOD, CEO and now CFO have intentionally and criminally broken Bylaws and Federal and State Laws of Incorporation. Changing the bylaws that you have already broken is obstruction of justice by premeditatedly covering up the crimes you have willfully committed. The illegal Governance committee since its inception in August 2017, as the only vehicle to offer a BOD’s vote on several bylaw changes, the total rewrite of the Articles of Incorporation in January of 2018 and the CMP are all therefore illegal. Immunity of the Board members only protects those who respond in confusing situations. It does not; however protect unreasonable mistakes, plain incompetence or willful lawbreaking. July 8th the Saline County court ordered the POA to make all books and records of the POA available to be inspected by any member for any proper purpose at any reasonable time. I have video proof that on July 9th I requested the POA to inspect the contract of the CEO. Although this State law has been crystal clear since 1963, I have not been able to see this information. Today is July 17th and the HSVPOA is simply now in contempt of Court for blocking my access to the books and records as a member of the property owners association.
Kirk Denger
07/16/2019 — 11:27 pm
July 8th the Saline County court ordered the POA to make all books and records of the POA available to be inspected by any member for any proper purpose at any reasonable time. I have video proof that on July 9th I requested the POA to inspect the contract of the CEO. Although this State law has been crystal clear since 1963, I have not been able to see this information. Today is July 17th and the HSVPOA is simply now in contempt of Court for blocking my access to the books and records as a member of the property owners association.
George Tenuta
07/09/2019 — 2:29 pm
Best news regarding the POA that has been published since the election. Time to move on and begin with reforming the CMP as well.
Patricia V. MacDonald
07/10/2019 — 3:24 pm
Open Letter to the Board:
Thank you for your agreement not to appeal Judge Herzfeldt’s ruling in the Cooper lawsuit. However, I do note a difference between what the POA announcement says it will reveal and what the court ruling entitles the membership to see: The ruling appears to include more than 1 executives’ salary while the POA announcement mentions only the CEO’s salary. Membership names and contact information are mentioned in both accounts. But what about other transactions that have been kept secret for years? The Troon contract, the gate RFI contract, the contract providing guards at the gates etc. Since you have been forced by the judge to disclose this much of the membership’s previously secret business, why don’t you board members vote to adopt Arkansas “Sunshine Laws” as your standard for all future POA governance. Sunshine is a wonderful disinfectant. Patty MacDonald, 11 Sabiote Lane
Kirk Denger
07/10/2019 — 6:57 pm
July 10, 2019
Special Litigation Update
On July 8, Judge Robert Herzfeld issued this ruling in the Cooper Communities, Inc. vs Hot Springs Village POA suit (Case id 63CV-18-1513).
During an Executive Session this week with Association counsel, the Board voted not to pursue an appeal, feeling the long standing policies which categorized membership and personnel records as confidential were sufficiently defended. Accordingly, the Board will be evaluating the Association’s records inspection policies.
The ruling will be effective within eight (8) business days, at which time the Association stands ready to schedule, at CCI’s convenience, the opportunity to inspect and scan/copy the following items it sought:
Names, addresses, phone numbers and email addresses of all Association members
CEO Contract
Translation:
During yet another secretive meeting called by the CEO through the Chair, The board narrowly voted not to pursue an appeal, realizing that our long-standing criminal law-breaking has been proven. Accordingly, the CEO and the four enabling directors will be grasping for other ways to break the law with their four votes.
Though the law has been crystal clear since 1963, we will declare and use 8 (business) days to shred and erase evidence that cannot be any longer illegally hidden, at which time the five lawbreakers will only allow two teeth to be pulled by only one member that has the financial means to prove that we are criminals.
Kirk Denger
07/17/2019 — 10:24 pm
We now have five Directors complicit with the CEO. Today Campagna joined the other turncoats against the voters who elected them.
Kirk Denger
07/17/2019 — 10:27 pm
We now have six lawbreakers. Nalley, Erickson, Leuring, Dixon, Compagna, and Mikey.
Anonymous
07/10/2019 — 7:24 pm
The judge’s ruling was effective the moment it was written and filed. The losing party has an appeal “window” of time which appears to be the eight days now left on the clock.
Nonetheless, the board decided not to appeal – to their credit!!! But, in typical “manipulate the rules” fashion POA (probably not the board’s decision) has decided to defer compliance and use up their remaining “window” of time so that they can defer compliance. In the meanwhile you can bet they will figure out how to “spin” new disclosure “policies” to their advantage.