Says ballot-counting can proceed, while he weighs testimony, legal arguments
By Greg Ellison
(Sept. 2, 2021) The property ownership status of Ocean Pines Board of Directors candidate Rick Farr remains undecided after a Worcester Circuit Court judge on Monday agreed to let the ballot counting proceed, while he decides whether Farr should be declared eligible to run.
By refusing to extend an injunction that stayed the election on Aug. 11, Judge Sidney Campen, retired from the Talbot County Circuit Court bench, recognized requests from Farr and the OPA for a speedy resolution of the argument. To that end, Campen scheduled a hearing on Sept. 27, when he will issue his decision.
Farr’s attorney, Bruce Bright, had argued that the injunction was intended to keep ballots in the custody of the Ocean Pines Elections Committee, while restricting counting returns or certifying results.
Farr was declared ineligible to run on July 27, even though 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.
“He believes he had strong support from his community,” Bright told the court.
Bright argued Farr had wrapped up campaigning prior to the late July revelation.
“His name was on the ballot distributed through the elections committee,” he said.
Additionally, Bright noted Farr had participated in an election forum with fellow candidates Stuart Lakernick, David Hardy and incumbent Frank Daly.
Further, Farr had placed election signs throughout the community and went door to door visiting hundreds of residents.
“Some number of voters cast votes for Farr,” he said.
Bright said the decision to disqualify Farr was based on Bylaws Section 5.02A, which states board candidates must be “owners of record,” on Jan. 1 of the election year.
“Their case is you’re not an owner unless your name is on land records,” he said.
Bright said the sole focus on 5.02A ignores conflicting details on association membership status included in the association charter and Bylaws section 2.02.
“There are a number of governing document provisions in place,” he said.
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.
Bright said Farr has an equitable interest in the family residence and that “Ocean Pines Association members under the charter includes legal and equitable owners.”
Other issues raised by Bright included the board’s closed session vote for disqualification in closed session during a special meeting on July 29.
During her testimony on Monday, Rogers said she contacted Farr on July 28 and he provided property deed details during the following day’s meeting.
Association President Larry Perrone moved the July 29 meeting into closed session after Farr explained his role in trust ownership.
Bright took exception with the board’s “secret disqualification decision.”
“You can go into ‘closed’ to consult with a lawyer, but have to come out of closed to vote and execute decisions,” he said.
Bright characterized the decision-making process as “patently unfair.”
“It is HOA and condo law 101,” he said. “To make decisions, you have to come out of closed and let the light of day see it.”
By contrast, Bright said the board erroneously relied on an exception to open meeting laws permitting closed session to consult with legal counsel.
“You can’t cover all that with legal advice and then make the decisions they did.”
Rogers testified that her initial qualification for Farr issued in May was based on a cursory review of online land records.
“She saw Richard’s name listed initially and believed him to be owner of record of the property,” he said.
Rogers said the revelation that the deed referred to Farr’s father became apparent after additional research was conducted following the tip on July 27.
“We engaged in multiple conversations with [Association lawyer Jeremy] Tucker about land records details,” she said.
When questioned by Bright, Perrone disagreed the closed session motion and vote was illegal.
“The Maryland HOA Act permits us to consult with counsel in closed on legal issues,” he said.
Perrone said the motion passed was to proceed with the election but abstain from counting votes cast for Farr.
“We were faced with no good decision,” he said.
Perrone noted costs could reach $25,000 to stage a new election.
“As president, my responsibility is to make sure bylaws are followed,” he said.
Bright asked Perrone if the association’s charter for section six, which covers the area of Farr’s property, was considered in the decision.
Perrone said the decision to disqualify Farr was made by Rogers and subsequently approved by the board.
Bright said the bylaws fail to specify the secretary has authority to reverse an earlier approval to later disqualify board candidates.
“Wrong decisions made in patently wrong ways,” he said.
During his testimony, Farr said he has been a full-time resident in Ocean Pines since Aug. 2019 and has paid all association fees.
Prior to that, Farr also paid a portion of utility costs and has maintained the lot since it was acquired in 1999.
“I’ve always taken care of maintenance of that property,” he said.
Farr also highlighted voting in the last three board elections.
“My belief was I was a beneficiary of the trust,” he said.
Farr became an official trustee after his mother died this May.
“In May, after my mom died, I became a trustee with my sister,” he said.
Bright said there was no question that in reaching the decision to disqualify Farr the board narrowly focused on bylaws section 5.02A while ignoring contradictory details regarding membership qualifications.
“In his mind, he was a property owner since 1999,” he said.
Campen agreed the 5.02A reference to “owner of record,” conflicts with other association member parameters.
Still, Campen opted to deny the plaintiff’s request for a preliminary injunction but to fast-track the hearing. In allowing the vote-counting to begin, Campen did not dictate how it should be done, but said, “I would hope the association would count all the ballots” and that the election results should be shared with the court and Farr’s attorney.
How the board undertakes that job and what it does subsequent to do the count is up to the directors, judging from Campen’s advice. But, Farr observed, “If OPA certified the election before the 27th and I am ruled eligible by the judge, this will create a bigger mess to this election that will need to be resolved.”