The Tragedy of Marty Lopata
The following discussion is nothing short of a tragedy. It is just another example of
how well-meaning people – anesthetized by their own power – can destroy a life as
casually as they might buy groceries.
Marty Lopata, an active volunteer on Third’s Maintenance and Construction
Committee, walked out of the Compliance Department’s offices on the 3rd floor of the
Laguna Woods Administration Building and casually waived to the receptionist,
saying, “Shoot you later,” a friendly idiomatic expression he picked up from his youth
in New York City’s Bronx borough. Remarkably, the receptionist freaked out and
called the police! In a moment, a team of Sheriff deputies descended on the building,
grabbed Marty and towed him over to their headquarters for questioning. Apparently
cooler heads prevailed, and the Sheriff dropped the investigation in a matter of
minutes. I am told they apologized; no hard feelings . . . and the matter seemed to be
dropped.
But not for this receptionist . . . nor for the Compliance Department whose offices she
fronted. Instead, Compliance – the Village’s prosecutors – instituted an investigation,
an investigation kept solely within the walls of their own department. Perhaps not
surprisingly, Compliance concluded that Marty had indeed threatened this girl; and
they filed a disciplinary proceeding against him, scheduling the hearing before the
Village’s GRF Committee the last evening before a new board was scheduled to take
office.
The entire case against Marty comprised the “testimony” of Jacob Huanosto, a
Compliance Department employee, who described his interview with this girl,
concluding that she felt threatened by Marty’s comment. And he then urged the board
to find him guilty and to punish him. So Compliance investigated; Compliance
prosecuted; Compliance testified; and Compliance recommended how the board
should rule! It should come as no surprise, therefore, when the board immediately
followed suit . . . and convicted and punished him: by excluding both Marty – and his
wife Mary – from entering the Administration Building for 30 days.
I hardly knew Marty at the time. But the “case” against him was so laughably
evanescent, so obviously weak, and so demonstrably biased, that it should never have
seen the light of day. The night of the hearing, I spent several hours drafting an
impassioned argument that I presented the following morning to the old GRF board,
perhaps the last thing some of them heard before the board disbanded. But my effort
was to no avail, several directors told me after the meeting: they had convicted him
. . . “but we only gave him a slap on the wrist.”
Some slap! At the time, there was a vacancy on the Third board; and Marty
determined to apply for that seat. But in a hastily-called closed meeting – Third’s
lawyer Sandra Gottlieb, describing Marty as “toxic,” urged the board to blackball his
application, which they quickly did. Humiliated, Marty promptly sold his manor and
moved to away.
Just over 2 years later, Marty Lopata – now living in a less-secure location –
contracted Covid-19 and quickly died. Would his odds of surviving – or even
avoiding entirely – that dreadful disease have increased had he remained in Laguna
Woods, we’ll never know. All we do know is that the combination of his kangaroo
court experience and his blackballing ran him out of town, altering his – and our –
trajectory. (Marty – whose background included property ownership and management
– was the best M&C advisor I ever saw! His unfair treatment robbed us of his unique
talent.)
Even though I hardly knew the guy, his mistreatment by the GRF board made my
blood boil, so I quickly drafted and submitted a brief urging the new board to rescind
the earlier decision. Here, for the record, is that brief:
* * * * *
From: Jules D. Zalon
To: The Directors of the Golden Rain Foundation
Subject: Rescinding the Disciplinary Decision of November 7, 2017
“Brief” in Support of GRF’s Rescission
of Disciplinary Punishment Decision
I care a great deal for this community. I plan on spending the rest of my life here, and
to contribute as best I can to making it better. So when I see a threat to its essential
goodness, I feel an obligation to do whatever I can to make things right. And right
now, that threat is the almost surreal manner in which the prior GRF board handled
the disciplinary hearing of … let’s call him John Doe, but you all know who I am
referring to. He was accused of making a threatening comment to a VMS employee,
a comment that no one in their right mind should have considered threatening.
Since Doe readily acknowledged making the statement, the only issue at the hearing
should have been whether the statement was in fact threatening, as opposed to merely
a good-natured, idiomatic way of saying, “goodbye.” And that required an inquiry
into how exactly the statement was made: Doe’s gestures; how he looked; how he
sounded; his facial expression; even whether he was facing the girl or walking away.
Doe explained his comment as a friendly expression common in his old Bronx
neighborhood. What evidence did the board hear that contradicted that explanation?
Not a word. Compliance’s Jacob Huanosto confirmed the statement that Doe never
denied making. But where was the accuser, whose testimony might have contradicted
Doe’s characterization? She was insulated not only from Doe but from the board
itself. Whether she actually felt threatened – a question that would have put her
credibility directly at issue – was never even considered. The board acted as if words
can only have their most superficial meaning. No subtlety, no coloring, no shading.
Good grief: how would they interpret these idiomatic expressions:
It’s Greek to me!
Driving me up the wall
He’s a loose cannon
Hold your tongue
Cost an arm and a leg
Straight from the horse’s mouth
Hold your horses
Burn the midnight oil
Let the cat out of the bag
Tickled pink
Piece of cake
Take it with a grain of salt
Even, “slap on the wrist!”
The accusation was made amidst a nation-wide maelstrom (male-strom?) of sexual
harassment claims and gun-related violence. A truly freighted atmosphere that risks
a witch hunt over the most innocuous comments.
The employee works cheek to jowl with the Compliance Department. The matter was
immediately investigated … by Compliance. Compliance – without any outside help
or guidance – then determined that Doe was guilty of having made a threat and should
be disciplined … apparently to the max. Then, at a hastily-convened GRF hearing
before the outgoing board, Compliance prosecuted the matter, presenting “evidence”
that only Compliance knew beforehand.
Doe’s Constitutional Rights Were Infringed
Let’s set the stage: HOAs are viewed by courts as quasi-governmental bodies, and
their actions are tested by the same rules that apply to municipal governments. As a
result, our boards’ actions – all of them – are circumscribed by the traditional
Constitutional protections such as due process, equal protection, and fairness. And
the classic due process protections include the right to confront one’s accuser, and the
right to cross-examine witnesses.
Yet at no time was Doe allowed to confront his accuser. At no time was he allowed
to question his accuser. And at no time was he provided the right to cross-examine
a single witness.
The question must be asked: how on earth could the board know what actually
happened? How did they know that this girl was telling the truth? How could they
evaluate the evidence? The answer of course is that they could not; they just had to
take the word of Compliance, a small group of people with an understandable bias:
to protect one of their own, a co-worker. The board just had to trust what they were
allowed to hear. In Hollywood, there’s an old joke that the term “Trust me” is used
interchangeably with a well-known two-word epithet, whose initial letters are F & Y.
But no one apparently took a moment to think about how the board had thereby
abandoned its responsibility.
Our Disciplinary Rules Bollixed Things Up
GRF By-law §4.5.1 provides that the “GRF Board may discipline or suspend
a Membership . . . .”
GRF By-law §4.5.4 provides that “Before any disciplinary action is taken, the
party charged with a violation shall be entitled to a hearing . . . .”
Section 4.6 provides for a hearing, but says merely that the member “shall be
given an opportunity to be heard and present evidence . . . .” (4.6.2) But there
is nothing that talks to what – if any – evidence is presented against the
accused. Nor how it is presented.
And there is where this matter went off the rails. In LWV’s more than 50 years in
existence, no one ever thought of creating procedures by which disciplinary matters
were to be conducted. So Compliance, not having any contrary instructions, read
these sections as an outside – rather than an inside – limit on the process. The by-laws
mention no right to confront one’s accuser; so they concluded that Doe was not
permitted to confront his accuser. The by-laws provide no obligation to produce
actual evidence or live witnesses; so they concluded that Doe had no right to see any
evidence or confront any witnesses. The by-laws make no provision for cross
examining witnesses; so they concluded that Doe was not allowed to cross examine
the witnesses (that he is not entitled to see). Compliance perhaps logically took the
absence of any mention of these traditional rights as meaning that they simply did not
exist. That, as noted below, was a mistake.
But they made another – procedural – mistake: Compliance took over the board’s
ultimate responsibilities. Instead of the board determining Doe’s guilt or innocence,
Compliance made that determination by itself; and then reported their conclusions to
the board, leaving for the board only the job of meting out the punishment.
But that authority belonged to the board, and to the board alone – not an unelected
cohort of employees, no matter how well-intentioned. Judges don’t delegate their
responsibilities to their law clerks, and certainly not to the prosecutors. Prosecutors
present evidence to the judges; they don’t take over the judge’s function.
Governing Legal Principles
As a quasi-governmental entity, everything we do – every action our boards take –
comes weighted down by the United States Constitution and its requirements of due
process, equal protection, and fairness. Here are a few of the principles that I believe
govern this matter:
For many Californians, the homeowners’ association functions as a
second municipal government, regulating many aspects of their daily
lives. The court in Cohen v. Kite Hill Community Assn. (1983) 142
Cal.App.3d 642, 191 Cal.Rptr. 209, noted the “quasi-governmental”
nature of homeowners’ associations. “‘[U]pon analysis of the
association’s functions, one clearly sees the association as a
quasi-government entity paralleling in almost every case the powers,
duties, and responsibilities of a municipal government. [Chantiles v.
Lake Forest II Master Homeowners Assn., 37 Cal. App. 4th 914, 922, 45
Cal. Rptr. 2d 1, 5 (1995)]
Interpretation: LWV is an HOA with powers, duties, and
responsibilities of a municipal government:
With power, of course, comes the potential for abuse. Therefore, the
Association must be held to a high standard of responsibility: “The
business and governmental aspects of the association and the
association’s relationship to its members clearly give rise to a special
sense of responsibility upon the officers and directors…. This special
responsibility is manifested in the requirements of fiduciary duties and
the requirements of due process, equal protection, and fair dealing.”
[Cohen v. Kite Hill Cmty. Assn., 142 Cal. App. 3d 642, 651, 191 Cal.
Rptr. 209, 214 (Ct. App. 1983)]
Interpretation: HOA boards are required to recognize the rights of its
members to due process, equal protection, fair dealing:
[I]n “almost every setting where important decisions turn on questions
of fact, due process requires an opportunity to confront and
cross-examine adverse witnesses.” (Citing Goldberg v. Kelly, 397 U.S.
254, 269 (1970)) The right to cross-examine applies in a wide variety of
administrative proceedings. [Manufactured Home Communities, Inc. v.
Cty. of San Luis Obispo, 167 Cal. App. 4th 705, 711, 84 Cal. Rptr. 3d
367, 372 (2008)]
Interpretation: Due Process Required that Doe be allowed to confront
and cross examine his accuser:
Here is what due process actually looks like:
In the case at bar, the disciplinary proceedings were in full compliance
with the constitution and bylaws of the Board, and the thirty-day
suspension was given only after Cantrell was afforded every element of
due process. That is, she was given notice of the charges, notice of a
hearing, the right to confront and cross-examine witnesses, an
opportunity to refute the charges, and a hearing before an unbiased
tribunal. [Multiple Listing Serv. of Jackson, Inc. v. Century 21 Cantrell
Real Estate, Inc., 390 So. 2d 982, 984 (Miss. 1980)]
In addition to violating Doe’s Constitutional rights, there was also an impossible
conflict of interest, which takes one’s breath away. As noted above, this girl was a coworker
with members of Compliance; she complained to Compliance; the matter was
investigated by Compliance; Compliance concluded that Doe had committed an
infraction and should be disciplined … apparently to the max; and then Compliance
presented its findings to the board. It did not present evidence; it presented its
conclusions. But, as previously noted, that was the board’s job!
In Doe’s case, there were apparently no written statements by anyone, not even the
accuser. There was no independent, impartial investigation on behalf of the
community. The accuser only gave her side of the story; she never had to withstand
cross examination, nor even independent, probing questioning. So her clearly selfinterested
statements were accepted as fact. Doe was not accorded the basic right to
confront his accuser, or to question her. Since the board did not act as a fact-finder,
the procedure essentially limited their function to meting out punishment.
The only possible justification for disciplining Doe would be that he threatened the
employee. That requires two facts: (1) the statement and (2) the employee’s
reasonable fear that it constituted a threat. But the only evidence before the board was
Doe’s testimony that (3) acknowledged the statement, but (4) explained it in the most
innocent manner.
But even there, the case collapses: I am told (from an eye witness: Doe himself) that
the evidence presented by Compliance was that he made a threatening statement.
That very characterization assumes the single critical fact that the board members had
to decide for themselves. Doe did not make a threatening statement; he simply
made a statement. Whether it was threatening – and therefore improper – was what
the board had to determine. Without anyone present apparently advising the board
members on their proper role, it is easy to see how they were led astray.
So in a way, the board itself was victimized by an inadequately-designed procedure.
It makes perfect sense that if Doe had actually made a threat, – if that was
conclusively established – well of course the board had to take action. Making a
threat violates the contract we all make to act civilly to one another. It threatens the
well being of everyone in the community. So we expect – we demand – that our
boards protect us from threats of all sorts.
But that is the function of our boards, not anyone else. Not even the folks in
Compliance. They have the responsibility of investigating compliance issues, but they
cannot determine that a violation occurred. That is unfair to them; and it is very unfair
to our members. And in this case, given the conflict of interest, they should never
have been tasked with the responsibility of investigating this complaint.
So what we had here was the equivalent of a runaway train:
Compliance, which did not know its limitations.1 Instead of limiting its actions
to obtaining and passing along real evidence, it took it upon itself to make
findings of ultimate fact, which was solely the province of the board;
A board that was never advised that it was their job to hear and evaluate the
evidence. Evidence from live witnesses.
And a poor schnook who was never provided with an iota of evidence to
support the accusation; and who was not allowed to confront or cross examine
his accuser.
Putting these fact together, is it any wonder he was found guilty?
But then the 3rd Board – in closed session, without even providing Doe a hearing –
blackballed him, ruling that he had no right to even stand for an open board seat. So
1I am not blaming them. No one – and no regulation – ever advised them of
the limits of their authority.
the “slap on the wrist” that several GRF board members told me they had given him
suddenly morphed into something so big that he – not surprisingly – not only lost his
board ambitions, he put his home up for sale and is about to leave LWV completely.
So a guy who had cleared his desk of all other activities to focus solely on working
for our community – a guy with a huge experience (and expertise) in property
management – is suddenly lost. I have been in several meetings where he was an
advisor; and the few times I asked technical questions, it is my recollection that he
was the one who answered every single one of them. That’s the sort of person we just
lost. And for what? What has been described as a little slap on the wrist. The whole
thing would be laughable … if it were not so serious.
Not only to us, but to him as well. After a lifetime of truly impressive
accomplishments, he has his record stained by a puny – and clearly illegal –
conviction in a Kangaroo-like disciplinary proceeding that would not pass the
straight-face test in any court in the country.
There is another aspect that shouldn’t be lost sight of. In my opinion, Doe has a really
strong case against both GRF and the 3rd Board for their combining to deny him his
Constitutional right to due process . . . and for the damage his reputation has suffered,
and will continue to suffer, for the rest of his life. Running him out of town the way
they did. That is, this conviction will follow him all the days of his life. There is no
way he can avoid it . . . without filing suit to overturn it . . . and for the damages
he suffered along the way.
So everyone shares a bit of the blame for the present situation:
The board, which shirked its responsibility and accepted Compliance’s
findings of so-called fact;
Compliance, which prosecuted this matter with nothing but double-hearsay
evidence, presenting conclusions rather than actual facts, and violating Doe’s
Constitutional rights in the process;
Doe’s accuser, about which the less said the better;
And perhaps even VMS management, for not immediately referring the matter
to a totally impartial person to investigate and make an independent report.
[Actually, I understand there was such an impartial party: the police were
called, immediately; they investigated, and apparently concluded that nothing
untoward occurred. Why did that not end the inquiry?]
And it all can go away in a blink. Simply by the new GRF board rescinding that little
“slap on the wrist,” something they can do at a closed session; something that will
never become public.
And to make sure that we never slide into this kind of situation in the future, I will
shortly be drafting a new set of disciplinary procedures – procedures that provide due
process protections – and will be offering them to the GRF board in due course.
The Board’s Decision Constitutes a Rejection of the Accusation
But there is another reason why this decision cannot stand. Let’s get this straight: Doe
either threatened to shoot this girl or he didn’t. If he actually threatened her, by what
logic could the Board have limited its punishment to a 30-day suspension of
Community Center access? That “slap on the wrist” seems more like a bone thrown
to Compliance than the punishment that a true threat warrants. So the board, by its
own conduct, was really saying it did not believe the case Compliance presented. You
don’t slap a wrist for threatening to shoot someone! If that is the case, they had an
ethical obligation to exonerate the man. And that obligation remains an imperative.
My Personal Interest in This Matter
Let me make another important point: I didn’t get involved in this matter to defend
this guy. I hardly even knew him at the time that I addressed the outgoing board last
month. I did it because I was personally offended by what I viewed as a terrible
miscarriage of justice. After all, if this could happen to him, tomorrow it could
happen to me … or to Bert … or to Rosemarie … or to anyone else not quick enough
to immediately seek legal advice. My interest is solely to right a terrible wrong.
The process by which this guy was railroaded should raise the hair – or as much of
it as we currently grow – and the hackles of every right-thinking resident of LWV.
And until our truly un-formed disciplinary procedures have been completely revised,
no one is safe . . . from a frivolous accusation.
There is only one way that this miscarriage of justice can be undone: by rescinding
that decision and revising our by-laws to build in guidelines and protections that will
pass Constitutional muster, guidelines that we can be comfortable with; and proud of.
I have no power – other than persuasion – to make that happen. But the members of
this board do have that power. I hope they will use it now.
Jules D. Zalon, member; private citizen.
Off The Cuff 