OCEAN PINES – A Worcester County Circuit Court judge has granted a temporary restraining order suspending the association’s board election until a decision is reached on the eligibility status of disqualified candidate Rick Farr.
On Tuesday, Judge Beau Oglesby signed a temporary restraining order prohibiting the counting of ballots and certification of election results as the court considers a complaint filed by Farr’s legal counsel against the Ocean Pines Association (OPA) and the Board of Directors.
“More generally, in the case, we are principally seeking a ruling by the Court that: 1) Mr. Farr is and has been eligible based on his equitable ownership (since 2000) of his property; and 2) the Board acted improperly (and in violation of applicable statute), in closed session, in regard to determining Mr. Farr to be ineligible and deciding to not count votes cast for him (having the effect of disenfranchising many votes),” Farr’s attorney, Bruce Bright, said in a statement this week.
The order, which comes a day after the Board of Directors voted against a motion to rescind the current election process, opines proceeding with the election would cause irreparable harm to not only Farr, but to voters and other candidates.
“The Court finds that, in the absence of immediate injunctive relief as set forth herein, harm may result to the integrity of the election results that will be irreparable in that: if the election proceeds unabated during the pendency of this case, by the time the issues in this case (which the Court finds to be facially meritorious) have been fully and finally adjudicated, and in the event Plaintiff’s claims are sustained or partly sustained, the election results will have already been certified and publicly announced, votes for Plaintiff will not have been counted or included in the vote count, voters having cast a vote for Plaintiff will have been disenfranchised, and purportedly elected candidates other than Plaintiff will have been already confirmed as Board members and perhaps Officers,” the order reads.
Oglesby adds, “The Court also finds that, even in the event that Plaintiff’s claims are not sustained, based on what is before the Court, if the election proceeds unabated during the pendency of this case, some voters may suffer irreparable harm, specifically partial disenfranchisement, based on having voted for a candidate listed on the ballot but subsequently disqualified; and candidates (other than Plaintiff) who are not elected may assert that the vote totals were tainted unfairly against them by virtue of voters voting for a subsequently disqualified candidate.”
The order states that the Ocean Pines Elections Committee will continue to accept ballots through the Aug. 11 deadline, and that all ballots will be kept in a secure and confidential manner. The ballots will not be counted, however, and there will be no certification of election results or disclosure as to the number of ballots distributed returned, how the ballots are stored, or as to any vote counts for or against any candidate listed on the ballot.
“This Order shall expire ten (10) days after issuance, or by earlier order of this Court,” the order reads. “The Court intends to hold a status conference within that period of time.”
In a statement issued on Tuesday, the Board of Directors acknowledged the temporary restraining order and announced the vote count, originally scheduled for Aug. 13, would not be held.
“In compliance with the order issued by the court, the vote counting will not take place on Friday at the Golf Clubhouse,” the statement reads. “When more information becomes available, the information will be provided.”
Farr Sues OPA, Board of Directors
Earlier this week, Farr’s attorney filed suit against the OPA and the Board of Directors seeking a temporary restraining order until the court could rule on his client’s eligibility in this year’s board election.
The case, he noted, was not only filed on Farr’s behalf, but also as a class action on behalf of voters “disenfranchised by the Secretary and Board’s decisions.”
The action came nearly two weeks after Board Secretary Camilla Rogers disqualified Farr over his homeownership status in the Pines.
According to the association’s bylaws, candidates must be a recorded property owner within Ocean Pines on Jan. 1 of the year in which the election is held. Rogers, who validates each of the candidates in her role as secretary, told community members this week an anonymous tip had led her to discover that Farr was not an owner of record, but a successor trustee to the property listed on his candidate application.
“A successor trustee, at this point, does not have ownership of the property,” she said in a special meeting on Monday. “And our bylaws clearly say that a person who is running for the board must have ownership of the property as of January 1.”
On July 30, the Board of Directors voted in closed session to proceed with this year’s election and ballot count, but to invalidate all votes for Farr.
“If a Member has submitted or submits a ballot voting for Mr. Farr and another candidate, the Member’s vote for Mr. Farr will be invalidated, but the vote for the other candidate will remain valid,” a statement reads.
In a complaint filed in circuit court on Monday, Bright asserts Farr is the owner of his Pines property, and argued against Rogers’ determination.
“Maryland law has long recognized Trust beneficiaries as having beneficial/equitable ownership of property forming the Trust corpus,” the complaint reads. “Plaintiff is and, since 2000, has been, an equitable and beneficial owner of the Property, based on his status throughout that time as a beneficiary of the Farr Living Trust. Plaintiff has also held legal title to the Property, in his capacity as a Co-Trustee of the Farr Living Trust, since his mother died. The position taken by the Board and/or Secretary as to Plaintiff’s candidacy – that Plaintiff is not eligible to run for the Board because he was not the legal title holder to the Property as of January 1, 2021 – is directly contrary to the forgoing law and governing document provisions.”
The complaint also alleges the board violated statutory law by debating and deciding on Farr’s eligibility in closed session.
“Moreover, the decision to disqualify Plaintiff was and is inconsistent with the Board Secretary’s own prior election related decision-making, the approval (“certification”) of his candidacy, the approved and distributed ballots, and all election-related announcements prior to July 30, 2021, on which Plaintiff and many voters have reasonably relied,” the complaint reads.
The court document also states the plaintiff was seeking declaratory and injunctive relief as a representative party on behalf of other OPA members who have voted or intend to vote for Farr.
“On Saturday, July 31, 2021, the OPA Board issued its ‘Official Statement on Richard (Rick) Farr Candidate Eligibility Status’ … in which the Secretary took the position that Plaintiff ‘did not meet the requirements for qualification to be a candidate [and] . . . is ineligible,’” the complaint reads. “The Secretary stated further that any votes already (or subsequently) cast for Mr. Farr would not be counted – expressing a clear and explicit intention to disenfranchise the many voters who had already voted for Mr. Farr or might subsequently do so (whether aware or not aware of the Board’s decision).”
Residents Call For Election Redo
Since Farr’s ineligibility was announced late last month, community members have called on officials to restart the election, arguing those who had already cast their ballots for Farr would have one vote instead of two.
And on Monday, a special meeting of the Board of Directors was called to consider the current election process. Director Doug Parks, who was absent because of a death in the family, submitted two motions – one to rescind the board’s July 30 decision to proceed with the election, and another to restart the election by issuing new ballots with only the eligible candidates listed.
“We have the opportunity to do the right thing for the community,” he said in a statement, “and I urge my board colleagues to vote to rescind the motion passed by the majority at the previous meeting and support a restart of the election.”
Both Rogers and Director Tom Janasek said they supported a motion to rescind. Rogers told attendees on Monday she wanted to correct her mistake.
“If this has been a terrible thing for you – and I know it has – it’s been a terrible thing for me and my family as well,” she said. “So I hope we are able to do the right thing, get this ship back on course.”
Directors Larry Perrone and Colette Horn, however, argued changing the current election process would set a precedent.
“I’m very sympathetic to people who feel they lost a vote. Votes can be lost in many different ways,” Horn said. “But I am loath to set a precedent that future boards will have to live with that will open the door to similar complaints.”
The board voted 3-2 against a motion to rescind its July 30 motion, which called for the election to continue as outlined in the association’s governing documents, but to invalidate all votes for Farr.
Rogers and Janasek voted in favor and Perrone, Horn and Director Frank Brown voted against. Director Frank Daly, a candidate in this year’s election, abstained from voting. Because the first motion failed, the board did not recognize the second motion to restart the election. Farr’s attorney filed suit in court that day.