Below is complete correspondence received from OPA Board of Directors related to Michael Borland's proposed motion to remove six members of the Board of Directors at the annual meeting:
Ocean Pines Board of Directors’ PRESS RELEASE
July 5, 2006
On July 3, 2006 all 7 Directors of the Board met in an open meeting to discuss 6 individual motions filed by Michael Borland, Section 4, Lot 0706, 16 Sundial Circle for the removal of Directors Cook, Duffy, Kelley, Stachurski, Sterrett and Venit for ignoring the marina referendum petition submitted to the Board on September 28, 2005.
After lengthy discussion, a motion to put Mike Borland’s motions on the annual meeting’s agenda FAILED with a vote of 3 NO (Cook, Duffy, Sterrett), 2 YES (Kelley, Vemt) and 2 ABSTINATIONS (Coleburn, Stachurski).
A motion was made by Director Cook to release to the press and the community the legal advice given to the Board why it is the opinion of OPA’s legal counsel that the Board of Director’s did not ignore the marina petition and is not in violation of the OPA By-Laws. That motion passed with 5 YES and 2 ABSTENTIONS (Colebum and Vemt).
Attached are the letters from Joe Moore, the OPA’s Legal Counsel and the series of emails received by the Board from Mr. Borland regarding this issue. If you have any questions, you may call the OPA office at 410-641- 7717, ext. 3002.
From: DIrectors <dlrectorsooceanplnes.o.g>
Sent: Tuesday, June 13, 2006 2:11 P14
“‘Daniel Schurs1ci”’ <danielb2@earthlink.net>, “‘George Colebum’” <scoleburn@eartiilink.net>,
To ‘“Glenn Puffy’” <gaduffyop@mchsi.com>, “heather Cook’” <HeathetECook@hobriail.com>, “‘Janet Kelley”’ <janetsusie@aoLcom>, ‘“Mark Venit’” <markvenit@cs.com>, ‘“Reid Sterrett”
<sterrett53@yahoo.com>
Subject: PW: MOTION 10 REMOVE A DIRECTOR FOR JUST CAUSE
From: Mike Borland/AppfledIT [mailto:mbortand@applied.com)
Sent: Tuesday, June 006 11:57 AM
To: DIRECrOROCEANPINES.ORG
Subject: MOTION TO REMOVE A DIRECTOR FOR JUST CAUSE
LADIES AND GENTLEMEN, I’M SENDING ThIS MESSAGE TO INFORM YOU, THE OCEAN PINES BOARD OF DIRECTORS, THAT I WILL BE MAKING A MOTION AT THE ANNUAL MEMBERS MEETING. MY MOTION WILL BE FOR THE REMOVAL FROM THE OCEAN PINES BOARD OF DIRECTORS, A CURRENT
DIRECTOR, FOR JUST CAUSE. PLEASE ACKNOWLEGE RECEIPT OF THIS COMUNICATION, AND IF YOU HAVE ANY QUESTIONS, PLEASE DO NOT HESITATE TO GET IN TOUCH WITH ME.. .SINCERELY, MIKE BORLAND..
· President Duffy forwarded this e-mail to Legal counsel for advice. Written advice was received on June 91.
· President Duffy called Mike Borland on several occasions to ask for details of motion. Mr. Borland responded by e-mail on June 15.
· Original motion was withdrawn June.20.
· Notice of motion to be raised at annual meeting sent to Directors on June 27.
· 6 individual motions sent to President Duffy by Mike Borland on June 29.
Page 1 of 1
Phyllis East
From: Mike Borland/AppliedlT [mborland@applied.com]
Sent: Thursday, June 15, 2006 11:47 AM
To: Directors
Subject: RE: MOTION TO REMOVE A DIRECTOR FOR JUST CAUSE
GOOD MORNING MR DUFFY, THANK YOU FOR THE REPLY TO MY COMMUNICATION OF 6-13-06. PLEASE BE ADVISED THAT MY ACTION MUST BE CONTAINED IN THE NOTICE OF THE ANNUAL MEETING, SENT OUT TO ALL CPA MEMBERS. IF YOU HAVE ANY QUESTIONS, OR I CAN BE OF ASSISTENCE, PLEASE DON’T HESITATE GETTING IN TOUCH WITH ME. SINCERELY, MIKE BORLAND
7/5/2006
Phyllis East
From: Mike Borland/AppliediT [mborland@applied.com]
Sent: Thursday, June 15, 2006 2:35 PM
To: Directors
Subject: RE: MOTION TO REMOVE A DIRECTOR FOR JUST CAUSE
MR DUFFY, THE DIRECTOR, (OR DIRECTORS) WILL BE NAMED AT THE TIME THE MOTION IS INTRODUCED. SINCERELY, MIKE BORLAND
7/5/2006
Phyllis East
From: Mike Borland/AppliedlT [mborland@applied.com]
Sent: Friday, June 16, 2006 2:02 PM
To: directorS@oceanpines.org
Subject: MOTION FOR DIRECTORS REMOVAL
MR DUFFY, YOUR REASONS FOR IGNORING ME, AT THIS POINT, ARE MEANINGLESS. IT IS MY RIGHT AS AN OPA OWNER, TO MAKE A MOTION AT THE ANNUAL OWNERS MEETING. IT IS YOUR OBLIGATION TO ASSURE THAT MY MOTION IS INCLUDED IN THE NOTICE OF THE ANNUAL MEETING, MAILED TO ALL
HOMEOWNERS. I RESPECTFULLY ASK THAT YOU RESPOND AT YOUR NEAREST CONVENIENCE. SINCERELY, MIKE BORLAND
7/5/2006
WILLIAMS, MOORE, SHOCKLEY & HARRISON, L.L.P.
3509 COASTAL HIGHWAY
OCEAN CITY, MARYLAND 21842
MARCUS J. WILLIAMS (1923-1995) 410-289-3553
JOSEPH E. MOORE TELEFAX 410-289-4157
RAYMOND C. SHOCICLEY MAiLING ADDRESS: OCEAN PINES OFFICE
JOSEPH G. HARRISON, JR P.O. BOX 739 P.O. BOX 1530
J. RICHARD COLLINS OCEAN CITY, MARYLAND 21843 BERLIN, MD 21811
REGAN J.R. SMITH
BRIAN D. SHOCKLEY
TELEPHONE (410) 641- 8080
OLWIA HARRISON PIULLIPS FAX (410)641-8282
CHRISTOPHER T. WOODLEY
PAUL TIMMONS HASKELL
June 19, 2006
Sent via e-mail and U.S. Mail
To: Glenn Duffy
President, Ocean Pines Association, Inc.
239 Ocean Parkway
Ocean Pines, Maryland 21811
RE: Issue to be presented to annual meeting re: removal of Director
From: Joseph E. Moore, General Counsel
Date: June 19, 2006
Dear Glenn:
You have advised me that you have received a request from a member of Ocean Pines Association, Inc. to place the issue of the removal of a Director before the membership at the annual meeting.
You have asked me to advise you with respect to the issue of removal of a Director by the membership.
In order to adequately address the issue, this memorandum will be divided into three areas of discussion: first; the statutory provisions with regard to removal of a Director; secondly, provisions of the Articles of Incorporation of Ocean Pines Association, Inc. and; thirdly, whether or not such removal is provided in the By-Laws of the Association.
Glenn Duffy
President, Ocean Pines Association
June 19, 2006
Page 2
A. Statutory Provisions: The
Corporations and Associations Article of the Annotated Code of
The provisions of the Corporations and Associations Article provides further that, the
provisions of the General Corporation Law applies to non-stock corporations unless specific provisions of the non-stock corporation subtitle provide otherwise.
Therefore, one method of removal of a Director is by the members of Ocean Pines Association, Inc. The requirements for the vote would necessitate a majority of members voting for such removal. There are presently eligible 7,455 members for voting at the annual meeting (subject to additional members paying assessments between now and the meeting). Therefore, 3,728 voting units would have to vote to remove a Director, without cause.
B. Articles of Incorporation: The Articles of Incorporation of Ocean Pines Association, Inc., in Paragraph EIGHTH provides for the Board of Directors but contains no provision with respect to the removal of any director.
C. By-Laws of Ocean Pines Association. Inc. In Section 5.13 of the By-Laws of the
Association, the By-Laws state as follows: “Any Director may be removed from the Board with cause by a two-thirds (2/3) vote of the voting members in good standing of the Association attending an annual or special meeting of the members in person (or by proxy) provided that notice of the proposed removal is contained in the notice of the meeting at which action is to be taken and provided a quorum is present at such meeting.” (emphasis added)
Therefore, a Director may be removed with cause by persons holding two-thirds of the voting units entitled to vote at the annual meeting and who are present in person or by proxy.
D. Summary. Under the pertinent provisions of law and corporate documents, a Director of Ocean Pines Association may be removed with or without cause by a majority of the voting units of the entire Association. In addition, a Director may be removed with cause by a two-thirds vote of the persons holding voting units in attendance in person or by proxy at the annual meeting provided that proper notice of the proposed removal is contained in the notice of the meeting sent by the Association.
I am hopeful that this memorandum adequately responds to your request of me
Very truly yours,
/jCtfl/
Joseph E. Moore, Esquire
General Counsel
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From: Glenn Duffy <a gm@oceanpines.org> 4 I I ) LeInbox
Sent; Tuesday,June2O,20069:13AM
—
To: <mboriand@applled.com>
“Glenn Duffy” <acting_gm©oceanpmes.org>, “George Coleburn” <gwcolebum@msn.com>, “Glenn
Duffy” <gaduffyop@mchsLcom>, “Heather Cook’ <HeatherECook@hotmall.com>, “Janet Kelley”
<JANETSUSm@aoI.com>, “Mark Venit” <Marlwenlt@cs.com>, “Reid Sterrer
<sterrett53@yahoo.com>
Subject: RE: MOTION TO REMOVE A DIREC1t)R FOR JUST CAUSE
Mr. Borland
Our printer wants the ballot package and annual meeting information in his hand by June 30, 2006. This will give him time to print all forms and envelopes. I wish to have OPA legal review your motion before it is mailed. I will need your motion rio later than Wednesday June 28, 2006.
If you have any questions please call me. For info I will be out of the office Wed. pm through Fri. this week. Rgds
G. A. Duffy
President
OPA Board of Directors
-----Original Message
From: Directors [mailto:directors@oceanpines.orgj
Sent: Thursday, June 15, 2006 3:30 PM
To: acunggm@oceanplnes.org
Subject: FW: MOTION TO REMOVE A DIRECTOR FOR JUST CAUSE
From: Mike Borland/AppliediT [maifto:mborland@applled,com)
Sent: Thursday, June 15, 2006 2:35 PM
To: Directors
Subject: RE: MOTION TO REMOVE A DIRECTOR FOR JUST CAUSE
MR DUFFY, THE DIRECTOR, (OR DIRECTORS) WILL BE NAMED AT THE TIME THE
MOTION IS INTRODUCED. SINCERELY, MIKE BORLAND
7/3/2006 10:54 PM
Jp?DJ7 iivunazi -
BOD
FYI
Glenn
--—-Original Message—---
From: Mike Bodand/ApIIedif [malfto:mborland@applied.com]
Sent: Tuesday, June 20, 2006 3:39 PM
To: Glenn Dully
Subject: RE: MOTION TO REMOVE A DIRECTOR FOR JUST CAUSE
GOOD AFTERNOON GLEN, I DON’T FEEL THAT I CAN COMPETE WiTH THE BOARD, AS IT IS
CURRENTLY “LAWYERED UP.” MY WIFE IS ABSOLUTELY CORRECT, IF I’M GOING TO SPEND
$5,000.00, iT SHOULD INCLUDE MA! TAPS AND A COCONUT TREE, NOT LAWYERS FEES. I TRUELY
DO THANK YOU FOR YOUR TIME. I HOPE I DID’NT WASTE TOO MUCH OF iT. PLEASE CONSIDER THE CURRENT “MOTION”, TO BE NULL, VOID, AND DEAD SINCERELY, MIKE BORLAND
1 of 1
7/3/2006 10:28 PM
Page 1 of 1
Phyllis East
From: Mike Borland/AppliedlT [mborland@applied.com]
Sent: Tuesday, June 27, 2006 10:16 AM
To: DIRECTORS@OCEANPINES.ORG
Subject: MOTION FOR REMOVAL
TO: GLEN DUFFY & HEATHER COOK, PER THE INSTRUCTIONS FROM MR. MOORE, ESQ., AND PURSUANT TO SECTION 5.13 OF THE BY-LAWS FOR THE OCEAN PINES ASSOCIATION INC., IT IS MY INTENTION TO OFFER THE FOLLOWING MOTION FROM THE FLOOR AT THE NEXT ANNUAL MEETING OF THE MEMBERS: I MOVE TO REMOVE THE DIRECTOR, OR DIRECTORS, WHO IGNORED THE
REFERENDUM PETITION PRESENTED ON SEPTEMBER 28, 2005. THIS WAS DONE WITH TOTAL DISREGARD OF SECTION 4.09 OF THE BY-LAWS. THIS/THESE SAME DIRECTOR(S) HAVE OPERATED IN CONFLICT WITH TITLE 11B, THE
7/5/2006
WILLIAMS, MOORE, SHOCKLEY & HARRISON, L.L.P.
3509 COASTAL HIGHWAY
OCEAN CITY, MARYLAND 21842
MARCUS J. WILLIAMS (1923-1995) 410-289-3553
JOSEPH E. MOORE TELEFAX 410-289-4157
RAYMOND C. SHOCKLEY MAUJNG ADDRESS: OCEAN PINES OFFICE
JOSEPH C. HARRISON, JR P.O. BOX 739 P.O. BOX 1530
4. RICHARD COLLINS OCEAN CITY, MARYLAND 21843 BERLIN, MD 21811
REGAN J.R. SMITH
BRIAN D. SHOCKLEY
TELEPHONE (410) 641- 8080
OLIVIA HARRISON PHILLIPS FAX (410)641-8282
CHRISTOPHER T. WOODLEY
PAUL TTMMONS HASKELL
June 28, 2006
Sent via Hand Delivery and
Fax to (410) 641-5600
Mr. Michael Borland
16 Sundial Circle
Ocean Pines, Maryland 21811
Dear Mr. Borland:
On June 17, 2006, you faxed to Glenn Duffy, Heather Cook and myself a motion to remove Directors of Ocean Pines Association, Inc. The motion reads as follows: “I move to remove the Director, or Directors, who ignored the referendum petition presented on September 28, 2005. This was done in total disregard of Section 4.09 of the By-Laws. This/These same Director(s) have operated in conflict with Title 1 IB of the Maryland Homeowners Association Act, the Articles of Restatement Ocean Pines Association, Inc., and the Declarations of Restrictions for Ocean Pines Section 4.”
In response to your correspondence, I telephoned you at 9:40 a.m. this morning, June 28”, and left a voicemail message. I also called at 3:10 p.m. today and again left a message and called Caliban Realty at 3:10 p.m. and also left a message by virtue of the fact that your fax correspondence came from Caliban Realty Corp., fax number (410) 641-5600.
It is imperative that I speak with you at your earliest opportunity by virtue of the fact that your motion does not correctly state the action of the Board. In fact, the Board on November 4, 2005 and subsequently on May 1, 2006 stated as follows: “The Board of Directors, within its discretion, as promulgated by the By-Laws of Ocean Pines Association, Inc., has agreed to grant
Mr. Michael Borland
June 28, 2006
Page 27/1/2006
the request for a referendum, if necessary.” The correspondence was sent on both occasions to Charles W. Herpen, “OPA Marina Group”,
I am enclosing herewith the following: your motion received on June 27, 2006; letter to
Charles Herpen from Glenn Duffy, President, OPA Board of Directors dated September 16, 2005, Ocean Pines Association Minutes of Board of Directors of Special Meeting, Friday,
November 4, 2005, Letter dated September 4, 2005 to Charles W. Herpen, letter dated May 1, 2006 to Charles Herpen.
As you can see, at no time did the Board or either Director “ignore the referendum petition presented on September 28, 2005.” Therefore, your motion to remove Directors does not state a reason for such removal.
I believe you will agree with me that it is futile and counterproductive to place the removal question before the majority vote of the entire membership because 3,728 votes would have to be cast in favor of removal for it to be effective.
As you can see by the contents of this letter, your motion does not allege “cause for removal” because it incorrectly states the premise.
It is for this reason that I wish to discuss this matter with you at your earliest opportunity and I am therefore causing this letter to be hand delivered to you so you can receive it on its date, June 28th I will be in my office tomorrow morning and you can call my office in Ocean City at (410) 289-3553, ask for Kristina.. my assistant, as I am frequently on the phone and do not wish to miss your call.
Very truly yours,
/jem/
Joseph E. Moore
November 4, 2005
Attention: Charles W. Herpen
OPA Marina Group
Ocean Pines,
Re: Referendum on Ocean Pines Swim & Racquet Club
Dear Mr. Herpen:
The Ocean Pines Board of Directors has met regarding the request for “a community- wide referendum before any additional Association money is spent for any new marina slip facilities at the Ocean Pines Swim & Racquet Clubs”
The Board of Directors, within its discretion, as promulgated by the By-Laws of Ocean Pines Association, Inc., has agreed to grant the request for a referendum, if necessary.
However, as you may know at this time, the Maryland Department of Public Works, the
Maryland Department of the Environment and the United States Army Corp. of
Engineers have not rendered a decision on the request by Ocean Pines Association for
permission to extend the Swim & Racquet Club manna.
Accordingly, so as to alleviate the potential of the needless expenditure of time and money, the Board of Directors will not proceed with the rime-line set forth in Section 4.G of the By-Laws related to referendum issues. Following the issuance of the permits, if such occurs, the Board of Directors will conduct a referendum at the earliest opportunity.
This decision was taken after deliberation by the Beard of Directors, at which time a motion was made and passed to hold a referendum. So as to alleviate any potential concern on the pail of your organization, this letter and its commitment to hold a referendum is being forwarded to you.
Should you have any questions regarding this matter, please contact me.
Very truly yours,
Glenn A. Duffy
President
Received Time Jun. 27. 11:13AM
LAW OFFICES
WILLIAMS, MOORE, SHOCKLEY & HARRISON, L.L.P.
3509 COASTAL HIGHWAY
OCEAN CITY, MARYLAND 21842
MARCUS J. WILLIAMS (19234995) 410-289-3553
JOSEPH E. MOORE TELEFAX 410-289-4157
RAYMOND C. SHOCKLEY MAILING ADDRESS: OCEAN PINES OFFICE
JOSEPH G. HARRISON, JR P.O. BOX 739 P.O. BOX 1530
J. RICHARD COLLINS OCEAN CITY, MARYLAND 21843 BERLIN, MD 21811
REGAN J.R. SMITH
BRIAN D. SHOCKLEY
TELEPHONE (410) 641- 8080
OLWIA HARRISON PHILLIPS FAX (410)641-8282
CHRISTOPHER T. WOODLEY
PAUL TIMMONS RASKELL
MEMORANDUM
TO: Board of Directors
Ocean Pines Association, Inc.
FROM: JOSEPH E. MOORE, ESQUIRE
DATE: June 29, 2006
Ladies & Gentleman:
I have just finished a telephone conversation from Michael Borland bringing up to date the issue of his motion to remove Directors who “have knowingly acted in violation of the By-Laws of Ocean Pines Association, Inc., and perhaps Title 1 lB. the
I have had two telephone conversations with Mr. Borland, one this morning in which I advised him that the original motion to remove the Board of Directors was not accurately stated.
In my second conversation I advised him that the allegations set forth in his individual motion related to each director were, likewise, without foundation. The reason I gave him was that his allegation of violation of the By-Laws was not correct. His point that the Board was required to hold a referendum within the time frame of the By-Laws was flawed in that, the Board was responding to a petition to prevent the Board of Directors from expending any more money with regard to the marina expansion at the Swim & Racquet Club. In fact, the Board has not spent any more money with respect to the expansion of the marina at the Swim & Racquet Club and, has advised the framers of the original referendum petition that, should the Board decide to do so, it will hold the required referendum.
Therefore, the original referendum petition is moot until such time as the Board decides to expend more money. There is, therefore, at this point in time, no “referendable” issue. -
Board of Directors
June 29, 2006
Page 2
I advised Mr. Borland that, in my opinion, a request for a referendum on an issue which is not contemplated by the By-Laws is not required such as, someone who seeks to close the Yacht Club on Sundays because their religious preference would be to prevent the sale of alcoholic beverages on Sunday. Such a petition would not obligate the Board to hold a referendum based upon the
I therefore declined in my conversation with Mr. Borland to accede to his motion being placed on the agenda for the annual meeting.
Should the Board in its collective judgment determine that it wishes the motion to be placed on the agenda, I will, of course, accede to the Board’s collective judgment but, in my opinion, the motion does not state a “cause” for removal of any Board member.
Please recognize that due to my schedule, I am submitting this e-mail to President Duffy without the benefit of having proof-read the contents of this memorandum.
I shall participate in the Board meeting at 4:00 p.m. today either by telephone or in person.
Respectfully submitted,
/jem/
Joseph E. Moore
General Counsel
JEM/kb
To: Mr. Glenn Duffy, President
Ms. Heather Cook, Secretary
Mr. Joseph Moore, Esq.
Ocean Pines Association, Inc.
From: Michael Borland
Date: July 29, 2006
RE: Motion to Remove Director
Pursuant to Section 5.13 of the By-laws for the Ocean Pines
Association, Inc. (OPA), I am providing you: (i) prior notice of my
intent to, at the next OPA annual meeting, move for the removal of
* Mr. Glenn Duffy as a Director of OPA; (ii) request that this Motion be
placed into the Notice of the meeting; and (iii) state the following “cause”:
Director Duffy has knowingly acted in violation of the By-laws of
Ocean Pines Association, Inc., and perhaps Title 11B, The Maryland
Homeowners Association Act, the Articles of
Pines Association, Inc., and the Declarations of Restrictions for Ocean
Pines Section 4.
Thank You,
Mr. Michael Borland
Section 4,
* An individual motion was sent for Directors Cook, Duffy, Kelley, Sterrett, Stachurski and Venit. This is a copy of one of those motions. Wording remains the same except for Directors name.
Uploaded: 7/5/2006
