Niles Rejects Eastman Member Rights

This was recently sent in by an ECA member who thinks that the Council did not comply with the Declaration of Covenants and Restrictions as it pertains to voting. Under Mr. Niles' (Chair of the Council) interpretation, any number of people residing at a single Eastman residence could represent a Special Place and vote as they see fit.--Ed.

ECA Covenants allow only one vote per property.

Five weeks ago I wrote the ECA to advise them of illegal procedures at the September Council Meeting. 

In that letter I pointed out that two people from the same property voted at the Council Meeting.  ECA's Covenants specify only vote per property.   The portion of the Covenants that addresses voting rights follows:

Voting Rights - For purposes of voting, the terms Members(s) and Owner(s) are interchangeable, the intent being to ensure only one vote for each assessable property. (Added 7/16/99)

ECA's response (see below) was that the definition of voting rights does not apply to voting by Council Members at a Council Meeting.  ECA provides no information from the Covenants or Council By-Laws that states that the Covenants do not apply to the Council or its members.  Why?  Simply stated, there is nothing that absolves Council Members from the section on voting rights.

George Niles, Council Chair, further asserts that even if two voters from a single property were not permitted and one of the votes were eliminated, the result would be the same. That neglects the possibility that a vote by a different person from that special place might have been cast against rather than for the proposal.  In the case of the vote to borrow $4.5M, the result was 55 for and 27 against or 67% favorable.  Had a single vote been changed the outcome would have been 54 to 28, or 65.8% favorable.  In that case the vote for $4.5M build new would have failed (it required 2/3 or 66.6%).  The election was that close.  And why was it even close - because Eastman's 'elected Council' failed to represent the voters, who were 3 to 2 against the $4.5M build new proposal.

What kind of government do you have when the governance itself does not follow its own Declaration of Covenants and Restrictions?  Not a very admirable one.  Some might call it an autocracy.

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RE: Your letter dated October 23, 2014 Concerning Voting at the September 6, 2014 Council

Meeting

Dear Mr. Schaefer:

In coordination with Maynard Goldman, President of the Board, and Bob Parker, past Council Chair, I am providing this response as the current Council Chair. We have thoroughly reviewed the matter you presented and find that the voting at the September 6, 2014 Council meeting was valid and stands as recorded.

The definition of voting rights you quoted in your letter does not apply to voting by Council Member (emphasis added) since they are not representing their individual properties but are representing a block of properties which make up a special place. This position is supported by the Declaration of Covenants and Restrictions (DCR) and the history of amendments to the DCR. The voting rights definition was added to the DCR by amendment in July 1999 specifically to implement the direct voting of the Board of Directors. In addition to adding the definition, Article V, Membership and Voting Rights in the Association, was amended. Article V is the prevailing article in the Declaration where the definition is applied. That article provides the specificity of those matters that are voted on by the Owners of property within the Association. The language of one vote per property is repeated in Article V. Article 6.1 clearly states, "...The council shall consist of Members who represent the Special Place in which they are Owners.'

Even if your definition of voting rights applied to voting within the Council, based on case law before the New Hampshire Supreme Court, in Judkins v Hill, 50 N.H. 140 (1870) and Appeal of Donna Soucy 139 N.H. 110 (1994), you would need to prove the outcome of the vote would have changed. As you pointed out, at least one couple from West Cove voted. lf you limited the vote to one vote per property and removed the second vote by that same property, the outcome does not change.

Sincerely,

George Niles

Chair of the Council