11 minute read
Opinion ....................... Pages
COMMENTARY Janasek wins, ‘bad faith’ loses
The recent conclusion to the Janasek vs. OPA litigation could not have been more satisfying or just, with the $49,000 (and rising) cost to the OPA to defend the indefensible sending a message to certain directors past and current that language in the governing documents that limit the powers of the Board of Directors needs to be followed.
Had a Board majority last summer not harbored animus toward former Director Tom Janasek, and had it been able to read, comprehend and apply clear direction in the by-laws and other governing documents, Janasek would not have felt compelled to file a suit to overturn the injustice of a 90-day suspension from OPA food and beverage venues.
Had rationality prevailed once it became clear that it was Janasek who had engaged in a verbal altercation with former Director Josette Wheatley, using language that is not used in polite society, whatever that is in this dystopian day and age, the issue would have been handled by Wheatley filing for and obtaining a “peace order” banning Janasek from her presence for a period of six months.
Janasek apologized, she obtained a peace order, and that’s where it should have ended, but it didn’t. A Board majority acting out of hubris and animosity, and a misplaced allegiance to Wheatley, and violation of clear language in the governing documents, decided it needed to intervene by suspending Janasek for 90 days, presumably to keep him out of the food and beverage venues in particular, where he has a part-time job maintaining draft beer lines.
Decisions by Worcester County Circuit Court Judge Beau Oglesby, including a temporary restraining order and temporary injunction, were decided indisputably in Janasek’s favor. Had the litigation continued into the summary judgment phase, there is no doubt as to the outcome. Janasek’s attorney, Bruce Bright, in every aspect, won every argument in the case.
Two statements by the Court’s most recent ruling stand out. One is that specific language in the governing documents limit amenity suspensions to failure to pay annual assessments and declared violations of restrictive covenants, or a decision by the General Manager that a suspension is warranted.
These specific instructions, according to the judge, could not be overruled or rendered meaningless by vague authority in governing documents giving the Board the power to act in the best interests or general welfare of Ocean Pines.
Members of last year’s Board majority before election results were known in August argued general welfare language prevailed over specific limitations. They were, simply put, wrong.
The judge also articulated ways that the former Board majority had exercised “bad faith” in its unfair persecution of Janasek. As they’ve been itemized in prior editions of the Progress, they won’t be repeated here. Suffice it so say that Janasek, in rejecting a settlement offer of $2,000 and then $10,000 to settle, would not be bought off so easily.
He cited the former Board’s bad faith, and similar bad acting in the 2021-22 Farr case and the 2019 Trendic case, as reasons he wouldn’t settle. That and a statement attributed to Frank Daly, according to one of his colleagues, that the intent was to bleed Janasek dry.
More bad faith to add to the toxic stew.
When the smoke had cleared from the settlement conference on Dec. 21, it was evident the current Board had capitulated, deciding in a 6-0 vote -- Colette Horn not attending and not voting -- to cover Janasek’s legal fees in return for settling the case. According to OPA Director Rick Farr, that contribution is $18,750.
The OPA’s insurance company will pay them, as well it should.
This outcome is another triumph for Bruce Bright. While state courts in Maryland rarely grant attorney’s fees to the prevailing party in litigation, it turns out the insurance company thought it a prudent investment in a reasonable settlement. The OPA had a very poor hand going into settlement talks on the merits of the case. One director commenting on “bleeding Janasek dry” was hardly going to improve the OPA’s lack of leverage.
This debacle cost the OPA its $25,000 insurance deductible and another reported $24,000 (through November) to Lerch Early, whose general counsel, Jeremy Tucker, provided auxiliary legal services to the OPA Board and insurance company lawyers. To the extent Lerch Early is helping with the final settlement document, more expense in December and even January is likely.
At the very least, defendants Daly, Horn, Perrone, and Peck should apologize to the OPA membership for their Court-adjudicated bad faith in the Janasek affair. Some retroactive crow consumption and asking for forgiveness in the Farr and Trendic cases would also be appropriate.
That doesn’t seem too likely, though. Reporting in this edition of the Progress suggests that directors Daly and Horn are planning some timely deflection or blame-shifting as early as the January Board meeting. Stay tuned for some pending motions involving the Matt Ortt Companies.
No repercussions or accountability will befall Daly and Horn, the two defendants in the case who remain on the Board. And yet the former Board majority was all too willing, if not anxious, to impose accountability on Janasek by giving him a three-month time-out, one that would have affected his livelihood by prohibiting him from practicing his trade at Ocean Pines bar venues. That’s a two-tiered system of accountability.
The former Board majority last year went to bat to defend Wheatley, who had voted self-servingly to suspend Janasek when she should have recused, since she had a starring role in the affair. This is the same former director who recently labeled the current Board a “criminal enterprise” for reasons poorly articulated but no doubt having something to do with the Board majority’s steadfast support of the Matt Ortt Companies in the failing boycott campaign. - Tom Stauss
3 5* 0
* Janasek vs. OPA (extra point for legal fees), Farr vs. OPA, Trendic vs. OPA, Swim and Racquet Club case
January 2023 Ocean Pines PROGRESS 37
A mini-kerfuffl e over virtual public comments
There’s been a mini-kerfuffl e on social media of late which takes OPA President Doug Parks to task for a policy that excludes those who aren’t attending Board of Directors meetings in person from making comments from a remote location during Public Comments.
It’s been framed by former OPA Director Amy Peck as inconsistent with an avowed policy of transparency. There has been some commentary that this is an example of suppressing free speech, and thereby an assault on the First Amendment.
Parks has reportedly called Peck’s critique a non-issue, and looking at the situation through an objective lens that seems like a fair assessment. For those with an active bias against Parks, this policy might loom larger in importance than it deserves.
It’s a non-issue because OPA members who want to participate in meetings beyond simply watching the proceedings are far and few between.
When asked by the Progress how many OPA members have ever wanted to express themselves virtually through Microsoft Meetings during Public Comments, an OPA staffer who would know because of intimate fi rst-hand knowledge of OPA IT replied this way: “Zero.”
As in zilch, nada, none.
That would suggest that it is indeed a non-issue for .99988168 or so of the OPA membership.
Even if one or two attempts to comment remotely made it through the digital cracks and there’s a memory lapse at play here, who really has been adversely affected? Let that person or persons step up and be identifi ed.
Until then it’s a tiff over a hypothetical that’s barely worthy of the term.
The policy may have been implemented to prevent the possibility of non-OPA members, or even OPA members, whose personal pronouns are “Injustice for MOC,” from spreading their malicious anti-Matt Ortt Companies boycott propaganda at OPA meetings.
There was a lot of that bullcrap planted on OPA social media sites not too long ago, so thinking it might spread to OPA Board meetings is not without some foundation. It’s a lot more diffi cult to make borderline defamatory comments in a public forum than it is on an online setting.
In a related matter, a letter by Parks to the editor of a local weekly complaining of a headline and article recently attracted some attention on local social media.
It referenced the aforementioned contention that non-resident OPA residents were being excluded from participating in OPA Board meetings.
Watching live streaming of a meeting isn’t much different than watching it in person, especially when there is no interest in opining during Public Comments.
Those who observe a Board meeting in-person or remotely are engaged in an activity of a kind -- more passive than active but it’s still engagement.
Maybe the headline was a bit off the mark; maybe not. It wouldn’t be the fi rst time a headline is somewhat at odds with the content of an article.
The article at issue seemed to rely mostly on Amy Peck for its content, and that’s what ticked off a Board majority who favored sending the letter. Suffi ce it to say she’s not popular with some of her former colleagues.
Apparently the reporter did attempt to get in touch with Parks for a rebuttal or simply a different perspective but did not hear back in time to include it in his story. That also happens all the time in the news business, and reporters and editors have to decide whether to run an article without giving the “other side” equal time.
Deadline pressures at a typical weekly do not always provide the needed time for suffi cient refl ection.
Sometimes, the better approach is to let an article simmer until someone with an alternative point of view is contacted and offers a quotable, competing perspective.
More often than not, the decision is made to go with what you have.
As OPA president, Parks takes seriously his role as the OPA Board’s primary media go-to person. He’s not diffi cult to reach.
Sometimes it takes a few days for a response to arrive.
The not-too-subtle subtext of Parks’s letter was: Don’t rely on Amy Peck as more or less a sole source for anything that goes on in Ocean Pines. She sometimes has good information and has shared it with the Progress.
But in this case it was a recipe for disinformation covered in a sauce of opinion with a tablespoon of anti-Parks venom.
It was undeserved.
Parks’s letter also called on the editor not to send his reporter to cover OPA meetings in the future, a somewhat over-the-top suggestion that seemed designed more to make a point than to effect the reporter’s banishment from Ocean Pines.
According to Parks, he subsequently had a cordial discussion with the editor who said he would “look into” the article at issue.
Shutting down any media access to meetings is never going to be a good idea, and it’s hard to image that Parks and his colleagues were not aware of that when including it in the letter.
The reporter didn’t attend the Board’s Dec. 17 meeting but had articles about it in the newspaper’s next edition. With bylines. The meeting was obviously “remotely” attended through on-line streaming or the post-meeting video. On-site attendance was clearly not required.
Here, too, there was a message sent and no doubt received. There’s been no follow-up to the “threat” of imminent banishment.
More evidence of trivial pursuits this past month was the debate in social media about whether the letter should have been sent, and who among the directors agreed with the sentiments expressed.
In email, Parks had those who you would expect to share his opinion and approach: directors Farr, Stu Lakernick and Monica Rakowski.
Without these four votes in favor, the letter would have ended up in the recycle bin before it was sent out to the newspaper.
Directors were asked about the letter on oceanpinesforum.com.
Not disclosing his point of view on the contents of the letter and whether it should be sent out: Frank Daly.
Disclosing his opposition to sending the letter: Steve Jacobs.
Suggesting that a similar letter should have been addressed to the Progress: Colette Horn.
This response was amusing.
Given the gag order on the Janasek suit, there’s nothing that comes to mind where an “equal time” comment from Dr. Horn was called for in recent months.
And if the “no comment” was the predictable outcome, why waste the phone call or email asking for comment?
Now that the case is in the rear view mirror, an opportunity to comment on the Janasek settlement and the judge’s comments about the Board majority’s Bad Faith, etc., was afforded Dr. Horn.
It was sent Dec. 26.
She offered a no comment for now, pending settlement terms signed off on in a formal agreement.
Finally, one can quibble that the Parks letter incident should have been handled in a public meeting rather than through email, but there’s no record of any director calling for a special meeting. So the spirit and letter of OPA by-laws allowing for email votes with the unanimous consent of all directors seems to have been adhered to.
Close enough, anyway.
LIFE IN THE PINES
An excursion through the curious by-ways and cul-de-sacs of Worcester County’s most densely populated community By TOM STAUSS/Publisher
The Ocean Pines Progress is a journal of news and commentary published monthly throughout the year. It is circulated in Ocean Pines and Captain’s Cove, Va. 127 Nottingham Lane
Ocean Pines, Md 21811
ADVERTISING SALES Frank Bottone frankbottone@gmail.com 410-430-3660
CONTRIBUTING WRITER Rota Knott 443-880-3953
