Arbitrator reverses election results for Deep Creek board

Article Courtesy of The Sarasota Herald Tribune

Published July 9, 2005


CHARLOTTE COUNTY -- Three Deep Creek residents who lost in a community association election have insisted for months that it was stolen from them. More than two-thirds of the 950 votes cast for them were invalidated.

This week, a state arbitrator agreed with them, ruling that the Section 20 Property Owners Association conducted its December election "improperly and in bad faith."

Arbitrator Susan Wilkinson Harnden overturned the results and handed board seats immediately to Kim Jakubaitis, Mike Brown and Michael Della Camera.

The victors hoped that the order, received Friday, would end another controversy at Section 20, a community with a reputation for wild election fights and raucous meetings monitored by off-duty sheriff's deputies.

"It's time that homeowners get to take over and participate instead of the board being the dictators of the community," Jakubaitis said. "It should be the community that runs the community."

But not so fast.

Friday afternoon, the victors showed up at Section 20's office to get keys and give notice that they would hold their first meeting Monday. According to Jakubaitis, association manager Lee Dunn refused to acknowledge the arbitrator's order, and the situation got so tense that a sheriff's deputy was called to the scene.

Dunn could not be reached Friday for comment.

Karl Scheuerman, a staff attorney for the state's arbitration program, said the arbitrator's decision is final and can't be appealed.

The victors are the first in the state to overturn a property owners association election since October 2004, when a state law took effect that requires election disputes in such associations to be resolved by an arbitrator, rather than going through civil court -- a more time-consuming and costly process.

Bernard O'Donnell Jr., the association's attorney, saw a copy of the decision Friday.

"If they ask me whether we have to follow this or not, I will recommend to them that they do," he said. "They have not asked me that."

Despite the state's insistence that the decision is final, he said there are still legal options to explore, because the new arbitration process is untested.

"Even if a law or statute ... states that something isn't appealable, there's always the state and the federal constitutional issue of due process," said the Fort Myers attorney.

If the association continues to block the new board members from assuming their roles, they may have to ask a circuit court to make the arbitrator's order stick.

"If that's the route we have to go, it's going to cost the association more money," said Brian Beason, a Port Charlotte attorney who represented the challengers in the dispute.

Jakubaitis and her husband, Steven, a dentist, say they have spent $15,000 to $20,000 in attorney's fees to challenge the election results. They will ask the state to order the association to reimburse those costs. The arbitrator has already ordered Section 20 to pay the state nearly $2,900 for its costs in handling the dispute.

Although Dunn isn't one of the three candidates originally announced as winners, he has been the target of the challengers' complaints. They say he takes a heavy-handed approach to governing the community of 3,910 properties, by enforcing deed restrictions selectively and harassing residents.

They believe Dunn stacked the association's ballot with candidates of his liking, and personally invalidated many of the ballots cast for Jakubaitis, Brown and Della Camera.

Now, they'll make up the majority on a five-person board that has the power to hire and fire association managers.

"The ball is in his court now, and we'll have to see how he reacts," Della Camera said.

But Dunn's $45,000-a-year contract, signed 14 months ago, doesn't expire until 2009. If the board fires Dunn without cause, he will be entitled to payment for the rest of the contract term.

"At this point we just have to let our attorneys decide what's going to be the best way to handle that situation and not cost the association money," Jakubaitis said.

That was before the confrontation Friday at the association offices.

In addition to overturning the election results, the arbitrator reversed three other votes: one approving a proposed budget; one adopting an $80 assessment for maintenance; and one adopting new architectural standards.

None of the three candidates whom the association declared winners six months ago lasted long on the board. One actually asked to be taken off the ballot before the vote was counted, another moved out of Florida not long after the election and a third left the board. Jakubaitis said it's been hard to keep track of who's on the board now.

The three new members' terms end in October 2006. Two other board members, Larry Cain and Jane Austin, are up for re-election this October.

Cain and Austin could not be reached for comment.

Summary Final Ruling

Deep Creek Section 20 election overturned

Disenfranchising Voters

Deep Creek residents upset

Homeowner association actions spawn rebellion