By Greg Ellison
(Nov. 18, 2021) Closing arguments were delivered on Monday with no judgment delivered in the lawsuit filed by Ocean Pines Board of Directors candidate Rick Farr over his last-minute disqualification tied to property ownership questions.
Farr was declared ineligible to run on July 27, even though now former Ocean Pines Board member and Secretary Camilla Rogers certified Farr’s candidacy on May 11. An “anonymous tip,” however, suggested that Farr was not a property owner at the qualification deadline of Jan. 1.
Farr entered Monday’s trial in Worcester Circuit Court with a full head of steam after a long-delayed ballot count conducted last month revealed Farr led the pack with 1,629 votes, followed by Frank Daly with 1,571, Stuart Lakernick with 1,511 and David Hardy with 941.
Judge Sidney Campen ordered the association to count ballots at the last court hearing in October. The court also halted an attempted redo election the board had approved by a 4-3 decision on Sept. 30.
OPA legal counsel Jeremy Tucker, the first of three witnesses to testify on Monday, told Farr’s attorney Bruce Bright his involvement began after being contacted by Rogers on July 28.
“I was not consulted on the decision to [initially] qualify Farr or other candidates,” he said.
Tucker, who began representing the association in December 2017, told Bright the situation arose after an unidentified party alerted General Manager John Viola in July that a board candidate was not a property owner of record.
“Did you verify the identity of the tipster?” Bright said.
Tucker said the situation was unprecedented in his experience.
“No, I didn’t think that was relevant,” he said.
Bright said both the association’s charter and declaration of restrictions make reference to equitable and legal ownership.
Bright said the association requires a board candidate to be an equitable owner, while a member could meet either definition.
Tucker agreed with Bright’s assessment that if a member is eligible to vote and listed as a property deed grantee they qualify for board candidacy.
“Your position in the context of a LLC in Ocean Pines is members can’t run for the board?” Bright said.
Tucker said his interpretation of qualifying as an owner of record would be having the individual’s name listed on public records.
Bright introduced Farr’s candidate application, noting the section asking for additional documentation if the person is not listed as property owner.
“It refers to OPA records and doesn’t specify Worcester County land records,” he said.
Tucker agreed that county land records are not part of the OPA membership database.
Bright asked if members of property ownership partnerships could run for the board.
“Probably not,” Tucker said.
Bright continued in that same vein.
“Have you considered if equitable owners can serve on the board?” he said. “Farr is an equitable owner of a trust that owns the property.”
Since 2000, Farr has been a designated beneficiary of the Farr Living Trust, the legal owner of the property originally purchased by his parents in 1999.
Tucker agreed an equitable owner in a property trust could serve on the board but doubted they would qualify for candidacy.
“So, an equitable owner of a trust can serve on the board but the person can’t run for the board?” Bright said.
Tucker agreed with the assessment.
“That’s the way I view the bylaws,” he said.
Bright said the sole basis to disqualify Farr was a reference in bylaws section 5.02A that states candidates be owners of records of real property in Ocean Pines on Jan. 1 of the election year.
“Are there any other bylaws used to determine disqualification?” he asked.
Tucker said no other bylaws or charter provisions were relied upon for the determination.
“Do any bylaws allow the secretary to disqualify candidates in the middle of an election with votes cast?” he said. “Or for the secretary to disqualify previously qualified candidates.”
Bright noted an email sent by Rogers to Tucker on July 29 claimed association membership and assessments supervisor Ruth Ann Myers made an “honest mistake” in originally determining Farr was a property owner based on OPA records.
Tucker said his opinion after being pulled into the discussion was the family trust was the owner of record not Farr.
Tucker said a subsequent request for documentation from Farr indicated he was a property owner but not owner of record.
Tucker said he was unaware Farr was considered a trust beneficiary prior to emailing the board several legal options on July 30.
Bright said during a closed session on July 30 then secretary Rogers opted to disqualify Farr and the board voted on how to proceed.
“She finalized determination on July 30 after thinking it over,” Tucker said.
Bright said Tucker’s email indicated a lack of precedent for disqualifying candidates during an election and also noted the Maryland HOA Act fails to address the situation.
“Your email also draws a distinction between being eligible to be elected and to serve,” he said.
Bright said among the legal avenues proposed by Tucker the board opted to follow the first route.
“Which recognized proceeding disenfranchised some voters,” he said.
By contrast, Tucker also proposed the board could not disqualify Farr and permit the election to conclude with all ballots counted.
He said if Farr was elected and seated, his eligibility could be challenged later.
“Under Robert’s Rules you could raise a … point of order challenging his eligibility to be elected or serve on the board,” he said.
Bright also raised issue with board motions voted on during a Sept. 30 special meeting held days after a court hearing left the issue still undetermined.
After voting 7-0 to rescind a motion passed on July 30 to hold ballots, the board voted 4-3 in favor of staging a “re-do” election without Farr.
Bright said after incumbent Daly voted to proceed with a new election, he abstained from a subsequent motion that deadlocked 3-3 to recount the 2021 ballots.
“Daly was one of four voting in favor after you advised him publically to abstain?” he said.
Tucker confirmed Daly ignored his legal advice.
Bright asked if any board members had also cautioned Daly.
Tucker said both Director Doug Parks and now former board member Tom Janasek echoed his advice to Daly.
“Was anyone else in the discussion?” Bright said.
Tucker said he could not remember other comments.
“You don’t recall [Larry] Perrone weighing in?” he said.
Attorney Anthony Dwyer, representing Ocean Pines, said in some instances HOAs have different qualifications to serve on a board versus being an association member.
Dwyer asked if Tucker had anticipated problems with the legal actions recommended to the board.
“Someone was going to potentially sue,” he said. “No matter which way they decided, they were all bad decisions.”
Tucker said if Farr was allowed to run other members or candidates could bring suit.
“The decision was made carefully knowing what could happen,” he said.
Judge Campen told Tucker in the wake of two recent board resignations, Farr could have been appointed to an open seat.
“If you and the board had chosen to do that, we wouldn’t be sitting in this court room today,” he said.
Second on the witness stand was Director Colette Horn, who acknowledged association bylaws lack procedures for disqualifying a candidate deemed qualified.
“The board position is anyone whose name is on the deed … can run for the board?” Bright said.
Horn said assessment fees must also be current.
Bright asked if an owner or member of an LLC that owns property could run for the board.
“I know of nothing in the governing documents prohibiting it,” she said.
Bright said Horn previously testified that shareholders of a corporation that owns property could run for the board.
“The principal shareholder could run for the board,” she said.
Bright also asked if the board had adopted a resolution concerning conflicts of interest.
“I’m aware it exists,” she said. “I couldn’t tell you exactly what it says.”
Dwyer objected that Bright’s line of questioning was irrelevant.
Bright said Daly’s vote to hold a new election would have violated resolution B-08 related to director conduct, which was rescinded this year after being adopted in July 2018.
Dwyer asked if Horn played any role in determining if Farr was qualified.
Horn, who previously served as secretary prior to resigning the role to seek re-election in 2019, wrote a handbook on related duties she shared with Rogers upon entering the role.
“She knew what her duties were and I didn’t consider it my place to be questioning her,” she said. “I would have no reason to second guess any of that.”
Last on the stand was Myers who said a database of property owners was used as the basis to initially qualify candidates.
In closing Dwyer asked Judge Campen to remove a list of 50-plus plaintiffs included in the suit.
“None beared harm in any way,” he said.
Further, Dwyer said including board members in the lawsuit was improper.
Bright said in light of the vote count revealing Farr garnered the most selections, the list of plaintiffs is less relevant.
“We are not seeking damages on their behalf,” he said.
Bright disagreed about including board members, noting they made a decision on the issue in closed session.
Judge Campen sustained Dwyer’s request to remove plaintiffs, but denied removing board members from the suit.
Dwyer next asked to file a trial memorandum, with Bright requesting the same ability if permitted.
“The closing issues in the case have been well presented prior to today,” Bright said.
Judge Campen Judge agreed both sides could file a trial memorandum prior to a ruling being issued.
Campen said one of the most troubling aspects of the case is the bylaws requirement for two persons per board vacancy.
“So you would need four candidates,” he said.
Campen said instead of seeking results, the board opted to disqualify Farr.
“If Farr had lost we wouldn’t be here,” he said. “I believe in the sanctity of elections.”