Was Norman McCullough Guilty of an Assault?
or
Learn just how desperate the board was in their
efforts to find Norman McCullough guilty of an assault.
Bottom line: Justice Denied! The board deliberately fabricated their guilty conclusion to suit their desire to punish Norman McCullough for his vigilance in defending the rights of Villa homeowners.
The August board meeting included a hearing on the allegation that Norman McCullough had physically assaulted Caren Carrero after the 27 May board meeting’s adjournment when he sought her attention while she was sitting at her table. Norman was attempting to inquire about a homeowner’s right to respond to a member's comments. This matter has been addressed by me elsewhere and by others.
Norman was found guilty of assaulting Caren Carrero in the shoulder, declaring "that such conduct amounted to an offensive activity in violation of Article III, Section 3.6 of the Declaration." The board's decision in this matter is absurd. Contrary to the views of the association's attorney, Norman's interactions with Caren Carrero on the 27th of May are not covered by Article III, Section 3.6 of the CC&Rs. This article address the more fundamental issue of whether the board had exceeded their authority to act on this matter and had deliberately misrepresented the basis for their findings in order to punish Norman for his persistent efforts in seeking justice for Villa homeowners.
While many would regard such an accusation by the Community Association Manager as absurd and should be dismissed, the board was quite serious in pursuing the matter, if only to tarnish Norman’s reputation in the community or to punish him for his past deeds. After all, the ever vigilant Norman had filed a number of complaints with the Ombudsman against the board and Caren herself for their alleged failures to comply with provisions of the statutes governing common interest communities like Sun City Anthem. The board was clearly anxious to sanction Norman one way or another, while not appearing to retaliate against him for his zealous pursuit of rights for Villa Neighborhood homeowners. Just how far was the board prepared to go?
If the board’s wrath against Norman were not enough, Norman was also the target of a defamation suit by the spouse of the board’s past president and current vice president, Roz Berman, for his recurring comments in community blogs about David Berman’s scandalous and illegal behavior as an attorney when he practiced law in Massachusetts.
The board’s path was clear, or so they thought. They would proceed on the basis of a Code of Conduct violation. After all, established procedures were already in place and the board could count on a smooth and quick resolution, or so they had assumed.
Norman was offered the opportunity to plead guilty and comply in the future. That option might have afforded Norman the chance to forgo any onerous sanctions. Believing in his innocence of the assault charge, however, Norman would not plead guilty, placing his fate in the hands of the board, or as Norman spoke in the hands of the Lord and his legal representative. Norman would also insist on a public hearing, placing the entire matter before the membership to witness.
The board’s presumed plan, based on the outcome of the hearing, was to find Norman guilty by extraordinary means and to extract some measure of punishment. However, those plans were fraught with serious and seemingly insurmountable problems.
The most serious problem was the board’s “discovery” that the Code of Conduct provisions under which the board was proceeding against Norman had been eliminated from the CC&Rs in 2009. Absent those provisions, the board was seemingly helpless to charge Norman with any conduct violation let alone proceed to the hearing phase in acting on those charges.
To understand just how bankrupt or desperate the board was to get Norman, one has to suspend their belief in sound judgment, a presumed hallmark of directors of community associations. In 2010 and without any Code of Conduct provisions in effect to judge Norman, what options were available to the board? The only honest option was to withdraw the complaint. Rather than choosing justice, the board reached into their bag of dirty tricks and chose to be vindictive.
What the board decided to do will surely test your power to reason, if not your confidence in the judgment of the board. More practically, it should call into question whether the deciding board members who pronounced Norman’s guilty of an assault had acted in good faith. The simple answer is that the board’s decision was not merely an exercise in poor judgment but also was an outright sham.
What the board’s decision should tell the homeowners of Sun City Anthem is that vengeance not justice was their objective in proceeding against Norman McCullough. Yes, Norman may have been an irritant to the board and staff in his pursuit of the truth concerning Villa Neighborhood matters, but that did not excuse how Norman was shamelessly treated at the hands of the board in this matter.
In their desperation to get Norman, the board decided to latch on to language in another section of the CC&Rs having to do with the owner’s restricted use of their property and more specifically with neighbor disputes. That section is headlined under the title “Quiet Enjoyment,” and is located at Sec. 3.6(h) under Article III. In brief, homeowners are protected under the “Quiet Enjoyment” provisions from the actions of their neighbors who may cause the homeowner some embarrassment, discomfort, annoyance, or nuisance. For example, an all-night party that keeps you awake or a do-it-yourself remodeling project by a homeowner who decides to start hammering and sawing at 4:00 a.m.
Sec. 3.6 provides a list of sixteen specific restrictions on the use of your property, such as for exterior lighting, trash containers, garage doors, vehicle parking, etc. And, as indicated above, Sec. 3.6(h) allows the homeowner to live at peace in their home free from those offensive or obnoxious activities that your neighbor might wish to pursue. You can view how Sec. 3.6(h) fits into the overall CC&R scheme by Clicking here.
What the board seemingly wanted to accomplish in Norman's case was to greatly expand the express and clear intent of Sec. 3.6(h) from your neighbor’s potentially offensive use of their property to also include any and all Code of Conduct violations that were specifically eliminated by the board in 2009. But, remember, the board wanted and had voted to get out of the business of monitoring and judging member conduct issues. They did so by eliminating all Code of Conduct provisions from the CC&Rs a year earlier.
In reality, though, there is no way to reformulate the intent of Sec. 3.6(h) to mean what the board had voted to eliminate last year. While that might have been the board’s intent, there is simply no legal or rational basis for doing so. The board’s efforts to accomplish their guilty assault verdict represents nothing less than a sham, a fraud against the community. That’s a very sad commentary on the state of our leadership, a low point in the governance of Sun City Anthem. Sec. 3.6(h) has a legitimate purpose. That purpose is not served by the board's conclusions in this case.
If you read Sec. 3.6(h) carefully, you will note its use of the term “Common Area.” What does that mean? Some might conclude that that reference might suggest that Sec. 3.6(h) applies to Common Areas, such as the Anthem Center, or to Freedom Hall where board meetings are typically held. But that would be a misinterpretation. It’s simply not what Sec. 3.6(h) says. Here is what that section states. Readers should pay close attention to the repeated use of the word "Lot" or "Lots" in the following.
Sec. 3.6(h). Quiet Enjoyment. Nothing shall be done or maintained on any part of a Lot which emits foul or obnoxious odors outside the Lot or creates noise or other conditions which tend to disturb the peace, quiet, safety, comfort, or serenity of the Occupants and invitees of other Lots.
No obnoxious, illegal, or offensive activity shall be carried on upon any portion of the Properties, which in the Board’s reasonable determination tends to cause embarrassment, discomfort, annoyance, or nuisance to persons using the Common Area or to the Occupants and invitees of other Lots.
For the less informed homeowner, Sun City has two different kinds of Lots. Roughly 7,000 units have a back yard included with their home; it’s part of the property owner’s real estate. The other roughly 160 units are duplexes located in special neighborhoods. Those units lack a homeowner owned back yard of the type everyone else has. For those duplex units, their owners use what is known as the Common Area as their back yard. This Common Area exists between the duplex homes that back up to one another. The association maintained (landscaping) Common Areas are the back yards for the owners of those duplex units.
In the above context, it is clear that the reference to the Common Area refers only to the Lots in the Villa Neighborhoods. Why? That’s because that is what Sec. 3.6(h) states in their use of the word “other” in the phrase “. . . . to persons using the Common Area or to the Occupants and invitees of other Lots.” (Emphasis added)
What are these “other” Lots that Sec. 3.6(h) refers to? The only conclusion possible is that “other” must refer to the Lots owned by the duplex homeowners. While these Villa homeowners have Lots, those Lots do not include a homeowner-owned back yard. There is nothing in Sec. 3.6(h) that applies to anything other than neighbor to neighbor issues and their alleged misuse of their property or the alleged misuse of the Common Area adjoining their property in the case of Villa homeowners.
In conclusion, what do we know?
Ron Johnson, 9 September 2010, Rev 10 Sept.