COMMONWEALTH OF MASSACHUSETTS

 

 

 

Superior Court

Berkshire County ss

Docket # 267

 

 

Michael Elbery

Westland Construction Corp.

Betty Sheinkman

Leszek Osmolak

v.                                                                                              COMPLAINT

Becket Woods Road and Maintenance District

John Amato

Nancy Svirida

Peter Mansbach

Steven August

Marilyn Flaum

Rich Sturtevant

Edward Farman

 

 

 

 

 

 

 

Introduction:

1. This is a complaint brought under M.G.L. C. 39 S. 23B(9) due to election violations at the Becket Woods Road and Maintenance District (hereinafter District) of its By-Laws and Founding Act - C. 351 of 2000 Acts (Act) that require the vote at the 8-31-08 meeting of the District be invalidated. Further, this complaint will itemize irrefutable facts that require, as a matter of law, that the election at the 8-31-08 District meeting be invalidated due to blatant election fraud and election tampering. Those not willing to fight for their rights won’t have their rights.

 

Parties:

2. Michael Elbery is a landowner at the Becket Woods Road and Maintenance District; (B.W. Lot 140A) he lives at 105 Laurel St., Apt. 8B, Lee, Mass. 01238.

3. Westland Construction Corp. is a landowner at the Becket Woods Road and Maintenance District, (B.W. Lot 79) its headquarters are 168 Fairfield St., Needham, Mass.

3a. Betty Sheinkman is a landowner at the Becket Woods Road and Maintenance District, (B.W. Lot 119) she lives at 3144 Gracefield Rd. Apt. GVT09, Silver Spring, M.D.

3b. Leszek Osmolak is a landowner at the Becket Woods Road and Maintenance District, (B.W. lot 38), he lives at 59 Mayfield Dr., Mastic Beach, N.Y. 11951.

4. Becket Woods Road and Maintenance District is a government entity created by an Act of the Massachusetts State Legislature via C. 351 of 2000 Acts. The District is governed by Becket Woods Prudential Committee, which is a 7-person body elected by the landowners/voters of the District.

5. John Amato is the Chairman of the Prudential Committee of the District – he is an elected member of the Prudential Committee of the District. His residence is 221 Friends Lane, Westbury, N.Y., 11590.

6. Nancy Svirida is the Clerk of the Prudential Committee of the District – she is an elected member of the Prudential Committee of the District. Her residence is 88 Beech Tree Lane, Becket, Mass. 01223.

7. Peter Mansbach is an elected member of the Prudential Committee of the District. His residence is 91 Central Park West, New York, N.Y. 10023.

8. Steven August is an elected member of the Prudential Committee of the District. His residence is 596 Prospect Street Apt. 4A, New Haven, Conn. 06511.

9. Marilyn Flaum is an elected member of the Prudential Committee of the District. Her residence is 17 Fox Hollow Dr., Becket, Mass. 01223-9508

10. Rich Sturtevant is an elected member of the Prudential Committee of the District. His residence is 50 Spruce Lane, Bethpage, N.Y., 11714.

11. Edward Farman is an elected member of the Prudential Committee of the District. His residence is 178 Hewlett Neck Road, Woodmere, N.Y.11598

 

 

 

Background Facts:

12. The District was created by an act of the Mass. Legislature via C. 351 of 2000 Acts.

13. The District worked at an annual budget of approximately $80,000.00 for about 5 years until 2007 when the budget was increased to $113, 000.00 a year, or $700.00 per lot.

14.In July 2008 the budget was increased to $133,000.00 per year, or $800.00 per lot.

15. A "Special Meeting" was called by the Prudential Committee on 8-31-08 in order to vote on an increase in the budget to $162,000.00 year, or $1,000.00 per lot. See Exhibit A (4 pages).

16.There are according to Town of Becket Assessors records 162 lots in the District of which 5 are owned by the District. Each lot gets one vote.

17.An "owner" is a person who owns a lot in the District. Each lot gets one vote.

18. There has been no increase in services of benefits to the owners of the District over the last several years. It is a mystery where all the extra money is going via, thus far, a $50,000.00 increase in taxes in just the last two years.

19. John Amato, Chairman of the District Prudential Committee, claims Gentian Hollow Road, which is a road in the District, cannot be repaired because the District has no money. The repair requires a load of gravel worth about $150.00.

20. The By-laws (Exhibit C) (Chapter VI – Section 1) and Founding Act (Exhbit D) require that the owners are allowed review of all voting and financial documents of the District.

21. The members of the Prudential Committee, in particular Amato, Mansbach, and Svirida have denied any access or review of the financial records or voting records to the owners of the District.

22. The Founding Act (Section 6 –(2&3)) require that all landowners/voters be notified 14 days in advance of any District meeting and ofany issue that is to be voted on at the District Meeting.

23. The Founding Act (Section 6-(2&3)) and By-Laws (C. II – Section 2) require that the District landowners/voters are notified by a specified warrant format that specifically alerts the owners as to what will be voted at the meeting.

24. A warrant was allegedly sent to "all" the landowners of the District by mail with a proxy attached. See Exhibit A –4 pages.

25. The warrant, Exhibit A, is deficient as it is so vague that it is impossible to determine what is to be voted at the 8-31-08 District meeting.

26. Numerous landowners of the District did not receive the warrant, Exhibit A, in order to be notified of the 8-31-08 District meeting or any voting issue at the 8-31-08 meeting. Many District landowners claim they are never notified of meetings or of issues to be voted on.

27. The last page of Exhibit A is the proxy that the Prudential Committee of the District sent to owners. See Exhibit A-4.

28. The By-laws of District, see Exhibit B, mandate an entirely different proxy format complete with notary requirements. Nowhere does this By-law proxy allow for the owners to vote either Opposed or in Favor of the forthcoming vote.

29. According to Nancy Svirida, 27 proxies were returned for the vote of the 8-31-08 meeting.

30. According to Nancy Svirida only 2 of the 27 proxies were Opposed to the proposed hike to $1,000.00 Annual District Tax.

31. It has been accidentally discovered, so far, that 7 owners claim that they voted Opposed via proxy to an increase in taxes for the vote at the 8-31-08 meeting.

32. Svirida and Amato refused to allow owners review of the 27 proxies returned for vote at the 8-31-08 District meeting. This is a violation of the By-laws C. VI s. 1.

33. The Act (Section 5(A) (4) & (Section 4(B)) & (Section 6 (8)) & By-Laws C. II s. 4 requires a Quorum of a ½ majority. There is no record in the By-laws of any change in that Quorum requirement. 162/2 +1= 82

34. At the 8-31-08 meeting of the District a vote was taken on an issue raised from the floor an hour and a half into the meeting. The alleged original proposed vote issue of a $1,000.00 annual Road District tax for fiscal year 2010, as per Exhibit A, was discarded and never voted on.

35. The issue raised from the floor and voted on at the 8-31-08 meeting was as follows:

36. "$200.00 one time special assessment in fiscal year 2010, to go directly to the Reserve Fund"

37. Blank 3"x5" index cards were distributed to the owners/voters by numerous individuals at the meeting in order to comply with the demand by owners/voters for a "private ballot vote". Some of the individuals distributing index cards were not officers of the District or elected officials.

38. There was no "Check Off’ to make sure each lot received only one "vote card" or one lot one vote. The woman that gave Michael Elbery 4 index cards had never seen or heard of Elbery before but took his word that he owned 4 lots in the District.

39. There were blue index cards scattered all over a table in the meeting room during the voting. Blue index cards were handed into to at least 5 different people at the front of the meeting room in order to be counted, accountability appeared to be lacking.

40. The one time $200.00 Special Assessment in 2010 was voted on and the vote was allegedly 64 to 24 in Favor of the $200.00 assessment, including proxy votes. The Prudential Committee applied 25 proxy votes in Favor of the $200.00 Special Assessment.

41. Since the Proxy voters were not notified as what was actually voted on at the 8-31-08 meeting those Proxies are void and cannot be counted at the 8-31-08 meeting/vote. All owners/lot owners are required to receive a 14-day notification by warrant of issues to be voted on at District meetings. See Exhibit D- "Act" s. 6(A)2.

42. Since the proxies are void there was no Quorum. 64 + 24 – 27 = 61

Never a Low Bid as Required by C. 30B

43. Mass. G.L. C. 30B – The Mass. Procurement Act – mandates that the District seek low bids for work done in the District. This has never been done and according to Prudential Committee Members Mansbach and Amato it will never be done at the District. Mansbach declared in Open Meeting on 8-31-08 "it would be bad for the Community".

Land Give-aways in violation of C. 30B s. 16

44. Two choice 5 acres parcels owned by the District on Stage Coach Rd. were sold in 2005 in violation of Mass. C. 30B s. 16. That statute – C. 30B s. 16 requires that the District sell the land to the highest bidder not give it away to employees and elected officials of the District.

 

Count I – Invalidate the District Election of 8-31-08 and All that It Produced

As per M.G.L. C. 39 s. 23B

45. The warrants, Exhibit A, that were allegedly sent to "all" landowners of the District were deficient because they did not give proper specification as to what was to be voted at the 8-31-08 District meeting. The warrant is both vague and ambiguous.

46. The warrant, Exhibit A, allegedly specifies that there District owners will vote, at the 8-31-08 District special meeting, on an increase to $1,000.00 annual District Road tax beginning fiscal year 2010.Many of the landowners at the District did not receive 14 day notification or any notification via warrant of the 8-31-08 meeting.

 

Irrefutable Fact, alone, that Causes the 8-31-08 "Vote" to be Invalidated

47. The proxies are illegal because those voters could not have known what was to be voted at the 8-31-08 meeting. Indeed, the issue that was voted on was not raised until 1 ½ hours into the meeting by an owner/voter from the floor, see paragraphs #34-36. As a result, No Owner in the District received any Notification at all as to what was to be voted at the 8-31-08 meeting. In other words, the issue for vote per the warrant, Exhibit A, was not voted on at all, but an entirely different issue was voted on. A 14-day notification of the voting issue is mandated by the By-laws of the District. See Exhibit D – "Act" s. 6(A)2.

48. Since the proxies, due to a lack of notice, if not out and out criminal election fraud, see paragraphs #29 – 32, must be voided, then there was no Quorum as required by the Act or By-Laws.

49. The facts, in paragraph #47-48, in this count are irrefutable – there is no need for a trial in order to resolve the facts - Only an issue of law to be decided by a Superior Court Judge.

 

50. For these above reasons the vote at the 8-31-08 District meeting is completely Bogus and illegal if not out and out ridiculous and is such a mockery to be laughable. The By-laws governing elections in the District were ignored – they must be followed.

 

51. We ask that all that was "voted" at the 8-31-08 District meeting be invalidated.

 

 

 

Count II – Require Prudential Committee to Allow Review of District Voting and Financial Records.

52. The financial records and voting records, including proxies, are public records and further, according to the District By-laws (Chapter VI s. 1), are open to inspection by the owners of the District upon demand to the District Clerk or Prudential Committee.

53. The Prudential Committee of the District refuses to allow inspection of the District financial records or voting records.

54. We ask the Court to Order the Prudential Committee to immediately allow inspection of all voting and financial records of the District to Michael Elbery for audit by Elbery who is a C.P.A., but most of all because he is an owner of the District and the By-laws mandate such inspection (By-Laws Chapter VI s. 1). Those same records are public records that anyone can look at.

 

 

Count III – Require Prudential Committee to Comply with C. 30B and Obtain Low Bids for District Work

55. The Prudential Committee had stated publicly in open meeting that requests for Low Bids as required by M.G.L. 30 B and high bids per 30B s. 16 will never be complied with and that "such laws are bad for the community."

56. We ask the Court to Order the Prudential Committee comply with all requirements of C. 30B as mandated by the Mass. Legislature and get low bids for the work in the District.

 

Wherefore,

We ask that the "Vote" of 8-31-08 of a $200.00 Special Assessment be Invalidated, that the District Prudential Committee be ordered by the Court to comply with M.G.L. C. 30 B, and that the District Prudential Committee be ordered to allow complete review and audit of all District Records both financial and voting records by Michael Elbery, and that the Court assess payment of filing fees and cost of service and out of pocket costs of this action to the owners of the District who made such payment/expenditures.

 

 

Michael Elbery – plaintiff and landowner

 

 

Westland Construction Corp. – plaintiff and landowner

 

 

Betty Sheinkman – plaintiff and landowner

 

 

Osmolak Leszek – plaintiff and landowner

This complaint was written by Michael Elbery, see this document and all activities of Becket Woods on the World Wide Internet @ www.BecketWoodsOwnersAss.org