Article Courtesy of The Charlotte Sun Herald

By STEVE REILLY
Published July 12, 2005

DEEP CREEK -- Without any dissent, Kim Jakubaitis was elected president of the Deep Creek Section 20 Property Owners Association on Monday. Michael Della Camera was elected the association's vice president and Mike Brown, treasurer.

The trio now has to get the association to recognize them. As of Monday, they couldn't even get keys to the association's office.

"If and when we get into the office, we have to have the new officers listed," Jakubaitis said after the vote was taken in front of the association's closed and locked office Monday.

A state arbitrator with the Department of Business and Professional Regulation overturned the association's 2004 election last week and declared Jakubaitis, Camera and Brown the winners of the election. The decision, issued July 6, calls for the association to install all three as directors immediately.

"(Jakubaitis, Camera and Brown) are pumping an energy into Section 20," said Linda Macklin, a property owner. "They've released us from the feeling that you can't do anything, helplessness. They've shown us that a small (group of) people banding together can change things.."

Immediately after learning of the arbitrator's decision Friday, Jakubaitis, Camera and Brown announced they would hold an organizational meeting Monday, but found themselves -- as well as more than 30 association homeowners -- locked out.

"Closed Monday 7/11 due to an emergency," stated a handwritten sign on the door of the association's office.

Lee Dunn, manager of the association, denied knowledge of the state arbitrator's decision Friday and could not be reached for comment Monday. Bernard O'Donnell Jr., the attorney who represented the association in the complaint filed with the Department of Business and Professional Regulation, also could not be reached Monday.

Finding themselves locked out like representatives of provisional government, Jakubaitis, Camera, Brown and the residents held a meeting outside of the office and held elections. The association's other two directors, Jane Austin and Larry Cain, did not attend the meeting. According to Jakubaitis, both Austin and Cain were aware of the meeting.

Neither Austin nor Cain could be reached Monday for comment.

Besides voting in the three as directors of the association, the residents passed around a petition to remove Austin and Cain as directors. The petition needs to garner signatures from 10 percent of the association's property owners.

Complaints by residents have been filed with the the Department of Business and Professional Regulation asking the agency to review Dunn's license.

Jakubaitis said her attorney, Brian Beason, was filing a motion for an emergency order in circuit court, asking a judge to "adopt" the arbitrator's decision. The judge can issue a court order for the association to recognize the arbitrator's decision and accept Jakubaitis, Brown and Camera as board members -- or, according to Beason, face contempt of court charges.

"Forcing us to go to court is just going to cost the association money," Jakubaitis said.

The Deep Creek divide

Last year, Jakubaitis, Camera and Brown formed a nonprofit organization called Concerned Citizens Section 20 and ran, more or less, as a political ticket for director seats against the present management of the association.

Like other associations, Deep Creek Section 20 property owners "vote" according to the number of properties they own. Section 20 includes 3,910 lots.

At the association's 2004 annual meeting, when it elects new directors to its board, Jakubaitis presented the association with more than 900 proxy votes supporting her, Camera and Brown. But she and her fellow candidates were told they the association voided 669 of her proxies. Even if 400 of those proxies had been counted, Jakubaitis said she, Brown and Camera would be serving on the association board.

On the night of the election, Robert Evans won his re-election to his director seat in spite of the fact that he maintains that he called Dunn prior to the election to resign from the board and wanted his name struck from the ballot. That information could have allowed a Concerned Citizens member to step up to the board. But on election night, Dunn denied Evans resigned.

That led to Jakubaitis calling for a state arbitrator.

"Under law, the (association) has a fiduciary responsibility to its members to ensure the reliability of its elections," stated Susan Wilkinson, a state arbitrator for the Florida Homeowners' Association Mediation and Arbitration Program, in her decision. "The manner in which (the association) conducted the 2004 election of the association, including the tabulation and renouncement of election results, was improper."

In her recount of the proxies, Wilkinson determined the results of the votes cast was:

* 640 for Brown.

* 638 for Jakubaitis.

* 627 for Camera.

* 594 for David Mooney.

* 591 for Edward Halle.

The association members' majority also voted against approval of the association's annual budget, which include a special $80 assessment, and against the establishment of architectural review criteria.

What's next?

A good part of the controversy is focused on the managerial practices of Dunn, who is also a former Section 20 director. Jakubaitis, Camera and Brown were asked Monday about Dunn's continued management of the association.

Jakubaitis pointed out that Dunn's contract expires in 2009. If dismissed by the association, she and the others said Dunn's contract calls for him to receive any bonus and severance pay.

"Our main thing is that this association got rid of the previous manager in the wrong way, and that cost us money," she said. "We want to make sure that we don't do that."

Jakubaitis, Camera and Brown have talked with representatives of professional association management firms, but Jakubaitis noted Dunn, as an association manager, does serve at "the will of the board" majority.

Jakubaitis, Camera and Brown also voted Monday to change the locks of the association's office.