Settlement Offer when the "goal posts were moved"

 In a Bruce Hunt reply to a post I made on Nextdoor he said:

“Look at the last offer the BOD made to Fields before he sued the entire community and tell me what was unfair.”

 

Following is the resignation letter from Phil Viruso a BOD member who saw that last offer and must have thought it was unfair. He represented the BOD and had negotiated a settlement with the Fields’ representatives before the board “moved the goal posts” and added 8 items that were unacceptable and a clause that said the board could cancel out of the agreement at anytime.

 

Here is his resignation letter:

 

 

I agreed to be on the settlement negotiating committee and put myself in the painful place between this BOD and the Fields.  Since we had our conference call this past Wednesday with Trevitt Cristo and put together an outline of our proposal, you have apparently backtracked and now are taking a reversionary position of drawing the battle lines.  You have made several public representations to the community that the BOD was close to an agreement with Fields (based on the Settlement Agreement), and now you are almost wholly rejecting the same agreement.  What has changed? It appears that you do not really want to make this succeed with the ongoing indecisiveness of your position; or there is intent to undermine this effort. This is compromising my personal credibility and reputation, and I will not stand for that.  It seems you keep moving the goal post as we move down the field, and that is tough for anyone to work with. 

This lack of steadfast leadership is not tenable for me and I cannot continue to be associated with its ramifications, especially when coupled with the vitriol and divisiveness that is present on this current board. 

Therefore, I am resigning from this Board of Directors and my (surrogate) Facility Chair effective immediately.  ......  I sincerely hope that you can find some way to get this back on track, as you have led the expenditure of likely over $40,000 in legal fees with no end in sight presently; and apparently you and some on this board are not even following the advice of our attorneys (or the last set).  This board has a responsibility to do the right thing for this community which should not be the agenda of a select few people.

 

 

Regards,

Phil Viruso

Observations from a resident - Todd Stell

 1) I have engaged a local lawyer to get advice regarding the mandatory signing of an NDA for new Board members.  The lawyer says that this requirement absolutely violates the NY Sunshine Statute.  I, therefore, suggest that any newly elected Board members refuse to sign the NDA on that grounds.  The success of Board members to avoid signing the NDA will allow them to provide information to the HOA members, without legal reprisal.  They will, however, still have the fiduciary responsibility to act in the best interests of the BHVA organization, as they see fit.

 

2) Since BHVA is a non-profit organization, they must meet certain non-profit accounting requirements; notably the tracking and use of "restricted" funds.  When funds are acquired by a non-profit organization with the distinct and stated restricted purpose, those funds can only be used for such purpose.  If the funds are redirected to other purposes, it is my understanding that the organization puts it's tax designation at risk, which clearly would be a violation of the Board's fiduciary responsibilities.  Such action would also have to appear in the annual audit. (eg, maintenance fund moved to legal fund).  If the Board fails to report the redirection of restricted funds to the auditor, They have not followed the tax law and are derelict in their financial and fiduciary responsibilities. Although I do not personally know that this has happened, there should be Board meeting minutes and other documents stating why certain "special Assessments" were collected.  These documents may constitute a legal and intended "restriction".  The audit and other documents mentioned above should be reviewed to identify if a failure to fulfill the restrictions has occurred. 

 

3) Recently, the cove agreement has been used to intimidate HOA members from accessing the beach and docks.  That is how I and other members have received it.  This statement has come from Condo HOA Presidents in an official format (constant contact with HOA titles by their names), but the communication is of personal opinion.  Firstly, to allow some private HOA members to use this mode of communication for personal communication (they even say it is their personal opinion) while preventing other private HOA members the same access, is either an abuse of services the HOA pays for, or even discrimination. Since the system is controlled by Kenrick, it may be useful to direct legal action to shut down this inflammatory and unofficial communication.  Further, the content of these communications seems to indicate ongoing communication with the BHVA Board members.  If the BHVA Board members are divulging information to the Condo Presidents in violation of the NDAs they have signed, they could face legal consequences.  

 

 4) Continuing on the Cove agreement...That document was an agreement between our neighbors and the HOA developer to limit dock size, appurtenant equipment, and undesired use of Shore Drive for ingress and egress.  It is my understanding that the residents of Shore Drive have since moved away and the Fields have acquired their property, thereby becoming a party to the agreement.  If the Fields provide permission for BHVA members to ingress and egress through their property, it is likely that the BHVA Board has little recourse to prevent this from occurring, and any such action may be considered as denying use and access to personal property that the BHVA has no ownership or control.