Time-share voting source of contention for commissioners
HOLIDAY ISLAND -- Are the time-shares eligible to vote in HISID commissioner elections?
It depends on whom you ask.
At a special meeting Monday to consider Table Rock Landing Time-Shares Association's "final' offer on its lawsuit against HISID over assessment rates, the issue of voting was back on the table. TRL is asking for 56 votes in annual commissioner elections, to be cast by the association on behalf of individual time-share owners. In support of its provision, it quotes Act 524 of 1993 in Arkansas code.
Up until the December 2012 election, TRL had not attempted to vote in HISID elections. Before that election, TRL board member Gary Hanson came to the district office during the absentee voting period and requested 56 ballots on behalf of the time-shares. He said by phone he was turned down for lack of documentation that he was entitled to get them. So he tried again.
"The second time I returned with a notarized letter, and they wouldn't deal with it," he said. "(District Manager Gerald Hartley) said he would give it to their lawyers. I believe the letter indicated the number of the law."
"The first time, he was told we'd have to contact the attorneys to check out his request," Hartley said by phone. "I believe he was told he needed to bring back the appropriate authorized request. He came back with a notarized letter, but it was not an authorized document.
"They never did identify that they were a corporate officer of TRL. A corporation acts through its officers, and generally there is a resolution that empowers somebody to do an action on their behalf. The only thing we had was a notarized statement authorizing us to give the ballots to Hanson. It was authenticated by the notary but not by an officer of the TRL corporation."
Hanson said he didn't receive an answer until after it was too late to vote. Hartley said he acted on advice of the district's lawyers in turning the request down.
In the December election, the candidate perceived to be favorable to TRL's cause was local real estate agent Greg Davis, who won his seat by four votes, beating out Ron Griswold, husband of former chairman Linda Griswold, who was in office when TRL filed its lawsuit.
At Monday's meeting Davis argued, unsuccessfully, that state law gives the time-shares the right to vote in HISID elections. Other commissioners contend it does not.
Act 524 of 1993, stemming from House Bill 1266, sponsored by Arthur Carter of Berryville, is entitled "An vact to amend Arkansas Code Title 14, Chapter 92, Subchapter 2 to allow certain suburban improvement districts to select a new five member board of commissioners; and for other purposes."
The Act, signed into law in February 1993, states that any SID with less than 6,000 lots and that appoints its commissioners from among its members can change the number and method of selection of commissioners. The request must be made to a quorum court member by a property owner, who then schedules an election.
The voting method gives two votes for each property, and "the interests of time share owners shall be voted by the Time Share Owners Association on the same basis."
The Act also adds sections that create the five-member SID commission and stipulates qualifications for candidates, how candidates will be nominated, how property owners will be notified of the election, how to obtain absentee ballots and what terms commissioners will serve according to the number of votes.
Commissioner Ken Brown called the TRL vote request "a power grab."
He read from the qualifications for voting in the elections.
"'Each individual property owner will have one vote, regardless of the number of properties owned.' Okay, I own a rental home in Holiday Island, and I own the home I'm living in. My wife and I get two votes, one for her, one for me. If I owned a time-share in Table Rock Landing, I could not vote, whether I lived here on the island or in Milwaukee, Wisconsin.... They're asking for 56 proxy votes to be cast for one elector, and in the last election there was a difference of four votes."
He added that when he ran for the commission, there was a difference of fewer than 56 votes among the contenders.
"So if you take the last elector, and you put 56 votes, guess what, he or she is getting in. And that's a proxy, not the 28 people who supposedly own the units over there. It's a power grab, is what it is, and I think it's against the election laws."
"You're arguing about something that already is documented in law," Davis said, "so are we going to break the law here, and not allow them to vote?"
Commissioner Linda Graves said the law giving the time-share association the right to cast 56 votes was only intended for the portion of the Act that changed the method for selecting commissioners.
"It's a one-time deal; it's a vote held by the quorum court, not by the commissioners, and if you read the law, it's quite clear what it refers to. So that is totally bogus that (TRL) quoted that law."
She said it "had nothing to do with our elections."
During public comment, property owner Don King said the regular residents "have enough votes" to overrule the time-share votes, if more people would vote.
Griswold said he belongs to another time-share association in which he has no vote and called TRL's demand "extortion."
The section added in the law on holding subsequent annual elections does not address time-share owners or the association casting votes. It stipulates that each property owner gets one vote.
But what remains to be answered, and at this stage is likely to be determined only by the court, is why the law would allow the time-share association a vote to change the number and method of selecting commissioners if it did not intend to allow the association or individual time-share owners a vote in ongoing elections.
In its amended motion, the board returned a counter-offer that included asking TRL to dismiss its voting request "with prejudice," which means it cannot bring the matter up again.
Whether TRL will accept the counter-offer remains to be seen. Although it informed the district's attorney, Matt Bishop, its last offer was "final," Bishop noted settlement offers frequently continue well into the life of a case.