Replies to This Discussion

Permalink Reply by Lisa Perez on July 29, 2010 at 4:21pm

ZZZZZZZZZZzzzzzzzzzzzzzzzzz 20 people out of 2000 homes show up for the meeting. Give it up and move on, obviously not on peoples radar.

• ▶ Reply

Permalink Reply by johnf on July 29, 2010 at 8:57pm

Before continuing my comments, I want to reiterate that although I will be calling attention to what I believe are errors, I in no way am arguing that any member of the board is untruthful. Just incorrect in some cases. I have been careful to make this clear because John Whitbeck has previously conflated comments that disagree with what he believes to be facts to be commentary that he has lied. It is not my position that any errors I note are the result of any evasion of the truth.

I want to first draw attention to the presumed results of the strategy which is advocated in this email. I still maintain that it is fair to characterize the approach as “wait and see”. Effectively they will only be seeking that same natural opportunities to improve our situation that have not yet resulted in any substantive improvements to residents. Such a strategy, while it is low (or even no) risk, is also likely to have a low return. Without some mechanism that would allow for reconsideration of the important terms of our contract, then the only potential benefits that this strategy could bring are an acceleration of some service features or relatively minor concessions in pricing. Negotiations from such a position almost certainly would not result in:

A] A change to the term of our contract with Openband to be more in line with industry norms and even other Openband contracts with other communities

B] A change to the bulk billing nature of our contract. While perfectly legal when negotiated and disclosed to residents in good faith, it is still eroding our income and ultimately each of you are paying some amount for uncollectable debts on our part that are paid to Openband.

C] Options to the residents in which services they can receive and pay for. Many residents do not use or wish to use all of the services.

It is disappointing that the board will not aggressively pursue strategies that could have these kinds of potential results. Such results would save every person in this community significant money while ensuring greater competitiveness from Openband. We also face potential liabilities as an association on A and B as these were not disclosed to home buyers. We will have an opportunity to see whether a more aggressive strategy is more successful in this case. While it may take a couple of years, we should be able to observe how the terms that Southern Walk has currently, change versus ours. I will be pleasantly surprised and complement the board if the wait and see strategy results in any of the three points I note above. It is hard to imagine how it will, however.

This email refers to the review of legal issues by John Whitbeck during the recent meeting. I was unfortunately out of the country during that meeting. My understanding is that he was reading from some kind of prepared comments. I have asked for a copy of those publicly read comments, with no response. Furthermore, although I have indicated a willingness to go under a strict NDA in order to understand the advice we have been provided, I have not had any of the actual advice given by our attorney’s shared. While it is possible that discovery requirements in an action might preclude that I receive the document electronically, it would not preclude my being allowed to read a copy of it or possibly even receive a physical copy. I am a television professional and fully capable of understanding and interpreting the documents directly. I have even volunteered to have a verbal discussion under NDA of the details and have not been taken up on it. I therefore cannot vouch for the accuracy of the statements put forth here. I will say that previous superlative assertions regarding the disposition of aspects of this situation have contained errors, and thus I am dubious that our attorneys have been made aware of all of the recent developments. This dubiousness is not based on doubt regarding good faith attempts, but rather whether they have been presented with all of the relevant questions to answer. If I could review those documents, then, as someone very close to all the details of this issue, I could assure others that all of the appropriate questions about options have been asked of the attorneys. At this point, I cannot conclude that.

Most importantly, the failure of our board to engage in a productive relationship with neighboring communities such as Southern Walk means that it is almost certain that the board is currently not in possession of the full analysis and details that have caused that community to take a different tact. This is the greatest disappointment. The breach letter is certainly only a portion of the information that our board could have considered and reviewed with our attorneys if a liaison could be established. As far as I am aware, our attorneys have not had any discussions with SW’s attorneys to understand better the logic behind the franchise aspect of the breach notice. Certainly, such a discussion would have been possible if a more cooperative relationship had been established.

The email also fails to address the other terms of breach cited by Southern Walk. The SW letter is based on three individual areas of breach. It should be determined how additional such breach terms are available to SW, and yet, somehow, not available to us. There could be answers, but I am not aware of any attempt to work with SW on those other aspects as well. Any one of those causes would be sufficient for declaring breach. Without such a clear survey of the facts, it is not possible that our attorneys would have been able to advise with any reasonable certainty. I also have to question what discussions with County officials were had that would make the board comfortable. All conversations I was aware of that the board or our representatives had as of 4 weeks ago or so would not have led reasonably to that conclusion in my opinion. I have also had interaction and conversations with county officials and am not comfortable that certainty in what will happen with the franchise can be established.

I still would prefer not to reveal all the details of the strategy I recommended to the board. My reasons are that I am still hopeful that the board will modify its approach and take advantage of aspects of that strategy. I am also concerned that to the degree that any of that strategy may overlap other communities approaches. I will say that my strategy was likely to obtain the positive results I think we seek with little cost above what we have already spent. Large costs would only become necessary if the parties entered arbitration. I recommended to the board that they survey the community regarding the members desire to potentially invest in going to arbitration with Openband. Such a survey would only require a high level estimate from our attorneys and then we can survey the appetite of the community for a special assessment to attempt a positive outcome in arbitration. Without an estimate I can’t say with any precision what that assessment would be, but it is doubtful it would ever exceed one month’s assessment and would likely be as little as 50 or 100 dollars a home. Effectively I argued that the community be given a voice in how important an aggressive stance with Openband would be. If the community effectively voted not to pursue an aggressive approach, then the matter would be settled and we would let events continue to unfold. I would be personally willing to invest up to one month’s assessment for the opportunity to potentially reduce my future assessments significantly. Maybe many would not. My only suggestion to the board was that they get an estimate and ask you. They have declined to do so and it is very unclear why they wouldn’t survey the community. Please note that my strategy generally had a low chance of entering arbitration and thus these costs would likely never have been borne, but the community would have decided if it actually was required.

The board should also understand that the lack of franchise agreement IS relevant if that lack continues for a 45 day period after notice. By way of example, our community would still have a reasonable cause of action if Openband lost signals to all homes for 50 days, but then returned the service. Because the time to cure would have expired, the action would still be valid even if Openband cured the fault after 50 days. Even if Openband had worked diligently to restore service for 50 days in good faith. This is equally true of the franchise. Even if the county provides a new franchise in October, if we had given notice when the lack of franchise agreement was first uncovered, we would have had a reasonable cause for the original breach and arbitration could be entered into. It is not possible therefore that future actions by the county would have inherently mooted our reasonable cause at the time of notice.

I encourage the board members to engage in discussion with the residents in these forums just as they would in townhalls and board meetings. Of course they should be sensitive to disclosing information which should not be disclosed in a public forum. Numerous questions posted here on this and other topics go unanswered by the board. It is very possible for them to engage with the community without discussing privileged information or otherwise harm our communities interests. As an example, questions have been posted regarding motivations for enacting internal resolutions that have received no response. There are many other examples in the threads on this site. Friendly engagement by the board with all of us in all forms can only help to increase the sense of community amongst our wonderful residents. I also sincerely encourage the board to engage directly with myself and other concerned residents. I remain willing to sign an NDA and be exposed to information in a way that cannot harm us in future actions. I am highly logical and analytical and if a review of those documents would change any of my thinking, I would certainly be compelled to honestly indicate my change in thinking here. I also ask that the board reconsider their approach and take one, even one that differs from mine, that has a reasonable possibility of high returns for our residents.

I encourage all residents to continue to express their concerns and wishes to the board. Most importantly, please express your opinions to the OVS commission and the county Board of Supervisors.

• ▶ Reply

▶ Reply to Discussion