ROETHE KROHN POPE LLP
September 11, 2009
ATTORNEY STEVE WERNER
MURPHY DESMOND SC
400 MIDLAND CT - STE 102
JANESVILLE WI 53546
RE: Wisconsin's Rock River Leisure Estates Home Owners' Association, Inc.
Recall by Members of Association
(001) You forwarded a letter dated September 4, 2009, to me, a copy of which is enclosed, whereby you represent several members of Wisconsin’s Rock River Leisure Estates Home Owners' Association, Inc.
(002) You asked me to summarize what happened on certain issues.
(003) A Petition calling for the removal of members of the Board of Directors was presented to the Board at the June meeting.
(004) This was not on the agenda and so it could not be acted upon until the July meeting.
(005) At the July meeting, the secretary for the Association verified that a sufficient number of homeowners signed the recall Petition and verified that the Petition was proper.
(006) Therefore, the Board scheduled a special election meeting for August 15, 2009 and notification and written proxy ballots would be given by the clerk of the recall election at least 21 days prior to the special election meeting.
(007) This is consistent with the By-Laws of the Association and Wis. Stat., §181.0808.
(008) At that August 15, 2009 meeting, we announced that the recall ballot had been sent out and that a number of ballots had been received.
(009) We also announced that anyone present at the meeting that had not voted could vote then.
(010) The ballots were opened in front of a large group of interested homeowners.
(011) The election committee and the secretary verified the proxies, the election committee counted the ballots, and then announced the results.
(012) Fifty-six (56) votes would have been a quorum pursuant to the election procedures for the Association.
(013) I announced that a simple majority vote would control the decision on each Director (252 votes were received - much more than the required quorum).
(014) The election was conducted in a fair way (1 vote per owner).
(015) The ballot of each owner was reviewed and approved, but their vote was kept secret.
(016) The result was that Joseph Rupprecht, Ron Satzke, Karen Bailey and Nancy Schlenz were recalled by a majority vote.
(017) Don Geimer remained on the Board by a majority vote.
(018) This left only Ernie Moon and Don Geimer as Directors for the remaining time of the term, which would have been until Labor Day Saturday, 2009, when the new election was to take place.
(019) After the votes were counted, I was approached by Ernie Moon, Don Geimer and the chairperson of the election committee concerning the ballot that was yet to be sent out for the September election.
(020) The ballot that was previously approved by the entire Board had listed six (6) vacancies.
(021) There now would be seven vacancies and so the election chairperson, Ernie Moon and Don Geimer, (the only two (2) Board members that remained), concluded that a ballot showing that there would be seven (7) vacant positions should be utilized.
(022) The same nominations of people nominated would be listed, but seven (7) vacant positions would be listed on the ballot.
(023) This was authorized by the two (2) remaining Board members and the election chairperson.
(024) This action is consistent with the By-Laws and the action of the owners creating an additional vacancy, as Ron Satzke, who was not up for re-election, was removed from office by the recall votes.
(025) The recall election was consistent with Wis. Stats., § 181. 0808, and the By-Laws and was valid.
(026) The recalled Directors were removed from office immediately upon the announcement of the vote.
(027) I was not aware that the election on Labor Day Saturday was canceled by former Board members and others by physical force.
(028) This action, in my opinion, is contrary to the By-Laws of the organization and Wisconsin Statutes.
(029) In my opinion, the recall was consistent with Wisconsin law and substantial efforts were made to ensure the integrity and fairness of that recall election.
(030) I am deeply troubled by actions of members of the former Board and others, without authority, canceling the election and seizing the ballot box.
(031) In my opinion, Ernie Moon and Don Geimer are the only legitimate members of the Board. Wis. Stats., §181.0805(4), service after expiration of term, provides:
(032) "Despite the expiration of a director's term, the director continues to serve until the director's successor is elected, designated or appointed and qualifies ... "
(033) [The By-laws are silent on this issue.]
(034) I believe it would be up to the two remaining Directors to meet with the election committee and submit a ballot and have a special election.
(035) If this is not done soon, I image members of the Association will file a court action requesting the Rock County Circuit Court to intervene and order and supervise a fair election.
(036) The recall election process was fairly done by the election committee, and they should conduct a new election.
(037) Unfortunately, because the ballot box was removed on the date of election, a number of property owners were physically restrained from voting and could not file a ballot and, therefore, the September 5, 2009, election process was tainted.
(038) I think the only fair and legal way would be to have a new election with a new ballot approved by the election committee and the two remaining Board members, scheduled at least 30 days in advance, as most property owners will have to be contacted at their homes.
(039) In conclusion, the former recalled Board members have no authority to direct the Association and any further action on their part is illegal.
pc Ernie Moon (current Board member)
Don Geimer (current Board member)
Larry Tuttle (Chairperson of Election Committee)
Jon Strang (Office Manager)
Attorney Bruce Briney
Joseph Rupprecht (former Board member)
Ron Satzke (former Board member)
Karen Bailey (former Board member)
Nancy Schlenz (former Board member)
(040) P.S.: Robert's Rules of Order are used as a guide for meetings.
(041) The By-laws and Wisconsin Statutes must be followed and trump any contrary provision in Robert's Rules of Order.