12/5/2019

Recording Meetings February 2019
From Eric Houg, HOA watchdog,carefree condo living, Country Club Condominium HOA

To The House Committee On Judiciary 5180 NW Neakahnie Ave. Portland Oregon 97229

HB 2617 protects the recording of meetings in homeowners associations (HOAs). Prohibiting recording is like suppressing news reporting in these fourth levels of government. All the other levels of government allow and facilitate recording. There should be a specific law about recording in order to avoid needless litigation. In year 2011, the Oregon House removed the opposite provision, "The board of directors may restrict or prohibit the recording of a meeting of the board of directors", before passing HB 3317. With that failure to prohibit recording, there is still no law one way or the other about recording HOA meetings. However, the status quo is for the courts to give HOA boards of directors wide discretion to deal with their internal affairs, which includes fining homeowners for recording.Quotes from the 2011 Legislative Session, HB 3317, April 29, 2011, House Floor1:08:09 Representative Matt Wingard - R: "I have some problem with the idea that we would prohibit people from recording what may not be technically a public meeting but still has to do with a community and not everybody can be there. I'm uncomfortable with resting the authority in the board itself, the ability to block people from holding them accountable by recording their activities."1:09:00 Representative Patrick Sheehan-R: "By allowing a board to disallow recording of the board of directors meetings, you're taking that accountability away, and these board meetings can be very contentious, and not allowing these sort of things to be used in court is just silly. A lot of financial decisions are being made here. Financial decisions on replacement of roofs and asphalt and important things. These things should have this accountability."1:10:32 Representative Wally Hicks - R: "Additionally, limiting and indeed prohibiting from a court action evidence that's probably the most important evidence of any dispute that would arise out of these meetings is not a good precedent either."Arguments Against RecordingArguments For RecordingRecording of meetings can be disruptive.The recording process itself is disruptive, but some opponents of recording are.Attorney General's Public Records and Meetings Manual 2014 - II. Public MeetingsWe have concluded that members of the public cannot be prohibited from unobtrusively recording the proceedings of a public meeting. We believe the logic supporting the public’s right to make an audio record ofPage 1 of 3 Eric Houg testimony for HB 2617a meeting also extends to video recording, subject to reasonable regulation to the extent necessary to prevent disruption of the meeting.Arguments Against Arguments For Recording RecordingAudio / video recordings could be altered or taken out of context.Audio video recordings are difficult to alter. Written retellings such as meeting minutes are much easier to fabricate. Audio and video are more credible. That's why news reporters and police carry recorders, not dictation machines. Multiple independent audio and video recordings would make it even more difficult to rewrite history.Recordings could be used to create legal challenges which would cost the HOA money.Yes, evidence helps protect the innocent and convict theguilty. Discouraging lawsuits based on false accusations would save the HOA money. In my HOA, the board of directors uses recordings and great gobs of HOA money to create legal challenges against individual homeowners.Being recorded prevents homeowners from speaking freely at the meetings.The Board itself has a history of preventing homeowners from speaking freely at the meetings.People do not wish to be quoted.The Board's standard punishment for homeowners is to misquote and mischaracterize them to make them look foolish. Recordings are a homeowner's defense. If a homeowner does not want the other homeowners to know what he truly says at a meeting, he should not say it.We are not a government where recordings might be of value. We are a private organization.Oregon or United Statesthe executive branch the legislative branch the judicial branch independent news mediaCountry Club Condominiumsthe boardthe boardthe board$400 fine for audio or video recording"A Homeowners Association’s (HOA) board of directors acts like a mini-government." Ted McBride, Posted 6th January 2014 by Vial Fotheringham LLP Lawyers, https://vf- law.blogspot.com/2014/01/embezzlement.html"The affairs of the Association shall be governed by a Board of Directors" - Country Club Condominium HOA Bylaws, Article IV, Section 1Page 2 of 3 Eric Houg testimony for HB 2617"The affairs of the association shall be  by a board of directors as provided for in the bylaws adopted under ORS 100.410." - Condominiums ORS 100.405 (3)governedArguments Against Arguments For Recording RecordingHOA boards have the power to prohibit recording because ORS 100.409 states that condominium association board meetings are to be conducted according to Robert’s Rules of Order, unless the board, by resolution, adopts other rules. Here, the Board has adopted Robert’s Rules of Order with an additional rule prohibiting audio and video recording.A recording ban does not fit the definition of “rules of order”.https://www.dictionary.com/browse/rules-of-orderthe rules by which a legislative or deliberative assembly governs its proceedings; parliamentary law.https://legal- dictionary.thefreedictionary.com/rules+of+order (redirects to Parliamentary Law)The general body of enacted rules and recognized usages governing the procedure of legislative assemblies and other deliberative sessions such as meetings of stockholders and directors of corporations, town meetings, and board meetings. Roberts Rules of Order are an example of such rules.Robert’s Rules of Order, 11th Edition, p 482, ll. 25-29 states that a board has only such power as is delegated to it by the society’s bylaws or by vote of the society’s assembly referring individual matters to it.Five states already explicitly state that homeowners may record HOA meetings. No states state the opposite, that boards can prohibit recording.Arizona A.R.S. 33-1804 (Planned Community Act) / A.R.S. 33-1248 (Condo Act),Florida Chapter 720 720.306Illinois ILCS 605 Condominium Property Act. Section 18 (a) (9)Nevada NRS 116.3108 9.Virginia § 55-509.3:2. 3. , § 55-510.1.Page 3 of 3 Eric Houg testimony for HB 2617

DATED January 8, 2018

THOMAS SCOTT BURNS, an individual resident of Oregon Plaintiff,

v.

COUNTRY CLUB CONDOMINIUM HOMEOWNERS’ ASSOCIATION, an Oregon non-profit corporation, Defendant.
Case No. 17CV46333

THIRD AMENDED COMPLAINT

Claim for Relief $160,000.00(Defamation, Abuse of Process, Intentional Infliction of Emotional Distress)

Filing fee: $560.00

Fee Authority: ORS 21.135 NOT SUBJECT TO MANDATORY ARBITRATION

JURY TRIAL REQUESTED
COMPLAINT

Plaintiff unit owner Thomas Scott Burns (“Burns”) hereby alleges as follows:

GENERAL ALLEGATIONS

1. Country Club Condominiums consists of 60 residential units, general common elements, and limited common elements created pursuant to the provisions of the Oregon Condominium Act, ORS Chapter 100, located in Washington County, Oregon.
2. Defendant is Country Club Homeowners Association (hereinafter “The Association”), an Oregon mutual-benefit nonprofit corporation governed by its Board of Directors who’s decisions and actions are that of the defendant.

3. Burns filed a small claims case 17SC41325 on September 21, 2017 that was served on September 25, 2017. The Association responded with a request for jury trial that moved the case to civil court. Burns thus filed a complaint on October 20, 2017. Burns had requested a jury trial in a previous action, but was denied while The Association wanted a bench trail. The reasoning behind The Association requesting a jury trial is illogical to Burns. The Association has imposed excessive financial burden by pursuing a SLAPP lawsuit before, Case C154640CV. This Strategic Lawsuit At Public Participation was meant to silence Burns, and violated Burns First Amendment rights, and the Speak Free Act of 2015.

4. Burns has been blocked from becoming a homeowner association board member and a member of the landscape committee since 2011 even though Burns had extensive experience as a professional landscape maintenance company owner, a tree and shrub pesticide and disease control technician and an employee of Home Depot in the gardening department. Burns had been self employed all his life until 1990 when Burns became an investment banker. Burns understands fiduciary responsibility and due diligence working in the financial services field. Burns later became a financial journalist on the internet in 1995 as ShieldsUp.com. Burns retired in 2014.

5. The Association has intentionally acted in an arbitrary, capricious, disparate and discriminatory manner violating Resolution 12 of The Association Bylaws.

6. The Association discriminatory retaliation against Burns is an abuse of discretion and power violating Resolution 12 of The Association Bylaws that states: WHEREAS, the Board is required to perform its fiduciary duty to the Association by implementing a special assessment or obtaining a loan when it is determined to be necessary or prudent. In the context of a condominium the term “fiduciary duty” broadly means the duty to act fairly and reasonably in all actions affecting condominium owners. Accordingly, associations and their directors cannot act in an arbitrary and capricious manner toward individual condominium owners nor can they single out certain owners for disparate or discriminatory treatment. The “fiduciary duty” also requires that associations and their directors must operate the business and financial affairs of the Association with ordinary care, skill and prudence.

7. The Association has intentionally acted illegally pursuant Article 1, section 20, of the Oregon Constitution that prohibits the granting of privileges to any class of citizens which are not available on the same terms equally to all citizens.

8. The Association knowingly breaching of its legal duty that is imposed by Oregon Constitutional law and duty arising from contract or quasi-contract has resulted in injury to Burns for which the law provides a civil right of action for damages and protective remedy.

9. The Association intentional deceit and negligent misrepresentation in communicating factual information has caused extensive economic losses and severe mental and emotional distress and injury to Burns.

10. By abusing its power and illegally and discriminatorily retaliating againstBurns, The Association intended to inflict severe mental or emotional distress on Burns and knew that distress was certain and substantially certain to result from The Association conduct.

11. The Association’s acts have in fact caused Burns to suffer severe mental and emotional distress such as stress, anxiety, dread, depression, nervousness, irritability, anger, rage, sorrow, grief and a profound sense of loss.

12. The Association’s acts consist of extraordinary transgressions of the bounds of socially tolerable conduct and exceed any reasonable limit of social toleration.

13. When The Association issued to all of the unit owners the written draft minutes of its September 16, 2014 meeting of its board of directors, The Association published false and defamatory statements about Burns.

14. The Association refused to correct or retract the statements when requested by Burns.

15. In so doing, The Association libeled Burns.

16. When The Association issued to all of the unit owners the written board memo September 28, 2017 from board of directors president Don Jones, The Association published false and defamatory statements about Burns

.17. The Association refused to correct or retract the statements when requested by Burns.

18. In so doing, The Association libeled Burns.

19. When The Association issued to all of the unit owners the written newsletter from former board of directors member and former president Bill Cook December 28, 2016 that was approved by then president Don Jones of the board of directors, The Association published bias and prejudice statements affecting Burns prior to the annual elections. The private USPS mailing was at the expense of the homeowners association and not non-board member Bill Cook.

20. In so doing, The Association used funds inappropriately for a personal benefit.

21. The Association, BPM Management and current president Don Jones continue to defame Burns by writing false information about legal proceedings with the intent to inflict severe mental and emotional harm to Burns.

22. Pursuant to Article IV, Section 23 of the Bylaws requires strict compliance by the unit owners with the provisions of the Declaration, Bylaws and rules, yet The Association, committee members and owners repeatedly violate these provisions.

23. Pursuant to ORS 100.480(9)(a) association records in general should be available to homeowners.

24. Pursuant to Bylaws Article VI, Section 7 and ORS 100.480(2) full detailed accounting should be available to homeowners.

25. Pursuant to ORS 65, ORS 100, ORS 100.480(9)(a), ORS 100.480(1), and ORS 100.210(5)(o) a unit owner may obtain owners list with addresses, telephone numbers and email upon written request. The Association denies access to an owners list intentionally to dominate communication and control advocacy.

26. Pursuant to ORS 100.420 telephone calls and email regarding The Association matters sent between and among directors are subject to the same open meeting requirements as in-person gatherings. Advanced notice must be given to homeowners about the meeting and a means must be provided for owners to electronically monitor an electronic meeting.

27. Pursuant to ORS 65.354(3), and ORS 100.420 committees are subject to the same rules of transparency that apply to the board of directors, governing meetings, action without meetings, notice and waiver of notice, and quorum and voting requirements. The Association restricts and controls communications with prejudice to deter any advocacy. Burns has experienced great harm and suffering as a result of the lack of communication and transparency without prejudice.

28. The Association, BPM Management and former president Carol Gearin continued to defame Burns by writing false information about legal proceedings with the intent to inflict severe mental and emotional distress of grief, loss, sorrow, depression, stress, anxiety, heartbreak to Burns.

29. The Association and BPM Management intentional publishing of malicious emails and mailings of memos and newsletters with knowledge that it was false and with reckless disregard of whether it was false or not, had defamed Burns primarily for the purpose of harming Burns.

30. The Association actionable negligence, contributory negligence and the assumption of risk has harmed Burns.

31. The Association and BPM Management publications were made with knowledge that they were false and with reckless disregard of whether they were false or not.

32. The Association and BPM Management made statements knowing they were false or with reckless disregard as to their falsity. Burns injury of reputation has caused Burns to suffer socially in the community and professionally because of The Association and BPM Management intentionally malicious misinformation.

33. The Association and BPM Management continued harassment of Burns by not providing services equally without prejudice as other unit owners is illegal pursuant [4] ORS 30.260(8), unconstitutional pursuant Article I, Section 20 of the Oregon Constitution, and violates Resolution 12 of The Association Bylaws. Burns has experienced great harm and suffering as a result.

34. The Association adoption of rules and regulations designed to punish Burns in pursuance of a personal vendetta against him on the part of individual members of The Association is illegal pursuant [4] ORS 30.260(8), unconstitutional pursuant Article I, Section 20 of the Oregon Constitution, and violates Resolution 12 of The Association Bylaws. Burns has experienced great harm and suffering as a result.

35. The Association and BPM Management has singled out Burns for special treatment and has retaliated against Burns alone.

36. On October 23, 2015, The Association consisted of Chair Carol Gearin representing unit 50 owner Dick’s Ltd, Bill Cook, Barbara Madsen, Mary Washkoske and Darrel Rebmann. Carol Gearin representing Dick’s Ltd, a Richard Delphia company, later resigned and moved away the next summer in 2016 after Dick’s Ltd sold unit 50. Mary Washkoske has resigned and moved away September 2017 after selling unit 36. Bill Cook resigned leaving Barbara Madsen and Darrel Rebmann on the board of directors. Burns has suffered from grief, loss, anger, sadness and depression because of the conduct of these members of The Association and the conduct of BPM Management.

37. The Association and BPM Management have colluded to oppress and intentionally inflict maliciously great pain and suffering to Burns. As recent as October 20, 2017, Burns has been waiting since September 5, 2017 for the balcony railing of unit 28 to be painted after having been pressure washed. The contractor skipped painting the Burns balcony railing on September 13, 2017 and painted the balcony of the former board member Mary Washkoske at another building. On October 3, 2017, BPM Management emailed Burns declaring the contractor had completed their contracted work. This was in response to an email Burns had sent showing the railing still not painted. This act and many other acts are intentionally done to inflict great inconvenience, pain and suffering to Burns by The Association and BPM Management.

38. The Association and BPM Management have corrupted voting procedure by double mailing ballots in 2017 and 2018 and encouraging owners to use the proxy vote before candidates are announced. This manipulation gives BPM Management excessive control and harms candidates by favoring incumbent majority board members. All incumbent majority board members were appointed by proxy vote.

39. The Association and Burns attempted to mediate with the assistance of the Hon. Jacob Tanzer prior to the filing of a previous action. This mediation satisfied any pre-litigation alternative dispute resolution requirement contained in ORS Chapter 100.

FIRST CLAIM FOR RELIEF

(Defamation)

40. Burns re-alleges paragraphs 1-39 and incorporates them by reference herein.

41. The Association’s retaliation against Burns’ alone is an abuse of discretion andpower and is therefore illegal, unconstitutional and violates of The Association Bylaws.

42. When The Association issued to all of the unit owners the written board memo September 28, 2017 from board of directors president Don Jones, The Association published false and defamatory statements about Burns.

43. The Association refused to correct or retract the statements when requested by Burns.

44. In so doing, The Association libeled Burns.

45. The Association, BPM Management and board of directors presidents have continued to defame Burns by knowingly writing false information about legal proceedings with the intent to inflict severe mental and emotional distress.

46. The Association’s libel of Burns has caused him to suffer economic andnoneconomic damages to his reputation in the community and professionally. 

SECOND CLAIM FOR RELIEF

(INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)

47. Burns re-alleges paragraph 1-46 and incorporates them by reference herein.

48. The Association abused its power and illegally and discriminatorily retaliated against Burns intending to inflict severe mental and emotional distress on Burns. Burns has suffered severe mental and emotional distress. As a result of The Association’ intentional infliction of emotional distress on Burns, Burns sought professional mental and medical help for symptoms of anxiety, stress and depression on April 2014 and continues to pursue relief from the same symptoms.

Punitive Damages

49. Plaintiff reserves the right to move to amend this Complaint to allege punitive damages pursuant to ORS 31.725.

Prayer For Relief

WHEREFORE, Plaintiff prays for judgement against The Association as follows:1. On Plaintiffs’ First Claim for Relief, damages against The Association for defamation in the approximate amount of $10,000 with the exact amount to be determined at trial;

2. On Plaintiffs’ Second Claim for Relief from Intentional Infliction Of EmotionalDistress, damages against The Association resulting from abuse of its power andillegally and discriminatorily retaliated against Burns intending to inflict severe mental and emotional distress on Burns. Burns has suffered severe mental and emotional distress. As a result of The Association’ intentional infliction of emotional distress on Burns, Burns has suffered damages in the approximate amount of $75,000.00 in economic damages and $75,000.00 in noneconomic damages with the exact amount to be determined at trial;

3. Plaintiffs’ reasonable attorneys fees pursuant to Bylaws Article XIV, ORS 100.470, and ORS 28.100;

4. For its cost and disbursements incurred herein; and

5. Such other relief as the Court seems just and equitable.

DATED January 8, 2018._______________________________

THOMAS SCOTT BURNS, Pro Se

5180 NW Neakahnie AvenuePortland, Oregon 97229

Telephone: 503-729-8889

Email: BeingThereInTheGarden@gmail.com

CERTIFICATE OF COMPLIANCE WITH COMPLAINT LENGTH AND TYPE SIZE REQUIREMENTS Complaint LengthI certify that this complaint complies with the word-count limitation of ORAP 5.05(2)(b)(ii) and that the word count of this complaint (as described in ORAP 5.05(2)(a)) is 2,631 words.Type sizeI certify that the size of the type in this petition is not smaller than 14 point for both the text of the complaint and footnotes as required by ORAP 5.05(4)(f) 

DATED January 8, 2018._______________________________

THOMAS SCOTT BURNS, Pro Se

5180 NW Neakahnie AvenuePortland, Oregon 97229

Telephone: 503-729-8889

Email: BeingThereInTheGarden@gmail.com

CERTIFICATE OF FILING On January 8, 2018, I filed the original of this motion in person a true copy of the same via the Court’s mailing address:Washington County Circuit Court Washington County Courthouse 150 North 1st Avenue MS37Hillsboro, OR 97124

DATED January 8 2018 _______________________________

THOMAS SCOTT BURNS, Pro Se

5180 NW Neakahnie AvenuePortland, Oregon 97229

Telephone: 503-729-8889

Email: BeingThereInTheGarden@gmail.com

CERTIFICATE OF SERVICEI hereby certify that I served the foregoing document on each party whose name appears below, on the date indicated below, by mailing to him by U.S. mail a true copy thereof in a sealed envelope, postage prepaid, addressed as follows:Country Club Condominiums C/O Michael J. Vial, Esq.Vial Fotheringham LLP17355 SW Boones Ferry Road, Suite ALake Oswego, OR 97035

DATED January 8, 2018.________________________________

THOMAS SCOTT BURNS, Pro Se