23 February 2020
The Truth, the Whole Truth & nothing but the Truth
Part 1: Democracy
“The dispute has never been about whether Onagrup can maintain the resort, it has always been about
whether Onagrup can be trusted not to take control of Los Claveles for its own ends”
The Foundations of Democracy
The Club’s Constitution, i.e. the contract between owners and the Club, is set within Scots Law.
Irrespective of anything decreed in Spain, the requirement for owners to pay their annual maintenance fees to the Club has been reviewed, accepted and judged lawful by the Scottish Court system and that:
1. Exhortation, by any individual, for owners to do other than pay the Club is, in effect, contempt of court.
2. Owners who pay OnaWimPen in preference to the Club leave themselves open to subsequent law suits.
The Practice of Democracy & Challenges to Democracy by Members Opposed to It
The last joint AGM was called and administered by WimPen Leisure Management S.A. (WLMSA) in 2015, the year that Club owners voted to terminate WLMSA’s administration contract following the shock announcement that the company had been sold to an unknown company, Onagrup Vacations, without prior warning to the owners. All requests by the Committee for the release of the Members Register to ensure that all owners were notified of the AGM were denied by the late Mr Pengelly.
The interim period between the announcement in January and the AGM in June saw the strength of concern grow, leading to calls for the Club Committee to terminate WLMSA’s contract. In an attempt to calm the situation and reassure owners the Club Committee asked Mr Pengelly to arrange an urgent meeting with Onagrup to discuss owner concerns. Mr Pengelly refused, stating that the Committee would meet Onagrup at the next Committee meeting in March, three months later. Prior to this he repeatedly refused to meet with owners during January & February to reassure them and calm matters down following the sale.
A refusal to include important Club documents with the papers sent out for the AGM fuelled the concern that the secrecy of the sale, and the denial of an urgent meeting had served to increase owner distress. As a result, a rising tide of owners resolved to attend their first ever AGM to find out what on earth was going on. Mr Pengelly was warned and repeatedly advised by the Committee to plan for a larger than normal attendance, and a full day agenda. He refused, allowing only four hours and booking seating for 200. Over 400 members from all over the country attended.
Owners who had experienced the loss of their holidays and similar situations at other resorts, together with the Club lawyer, advised that scrutiny of the proxies prior to the meeting was imperative. Having formally organised the appointment, the Club President and several owners arranged with WimPen to meet with Ian Crane (Mr Pengelly’s son-in-law) and his team to oversee the proxy count. Despite repeated requests from the Club monitoring team to inspect proxies, particularly those given to Mr Pengelly, President of the DOA, these were denied. Furthermore, approximately 15% of the proxies from Club members given to Mr Fletcher were refused on spurious grounds, and were not counted.
Registration for the AGM was chaotic and disorganised despite WimPen’s 25-year experience of administering AGM’s for a number of resorts. Incorrect voting cards were handed out. A number of Club members were given Escritura voting cards (if not discovered accidently this would have had the effect of important votes being lost to the Club). As a consequence, approaching 90 precious minutes were lost and tolerance levels were stretched beyond breaking point, causing the highly charged meeting to become virtually unmanageable. When challenged from the floor Mr Pengelly apologised and accepted total responsibility for the chaos. Despite this the Club Chairman was blamed.
Against the rules, outside agencies were invited to the AGM, including RCI Europe whose head took to the floor uninvited to speak on behalf of Onagrup, stating that RCI had 25 years of experience with them. This despite the fact that Onagrup had not been in existence for 25 years. Non-English speaking Onagrup Chief Executive, Mr Castro’s presentation in Spanish was repeated in English by a translator causing an even greater delay prior to the vote.
To this day a hard core of Club members – not aware of events in the lead up to the AGM – including Mr Pengelly’s refusal to release the Members Register (which under the Club Constitution belongs to the Committee), or to include important Club papers in the AGM mailing, or comply with Mr Fletcher, the Club Chairman’s constitutional requests and a total denial of access to the Member Register for which the Committee is responsible, and other duplicitous behaviours – have not forgiven the Club Chairman, and seemingly never will, many of them subsequently aligning themselves with Mr Barrow and forming an unelected ‘alternative’ committee. Their idea of democracy is to protest against decisions made democratically by majority vote at AGMs. Then to criticise and blame the Chairman and the elected Committee for carrying out their constitutional duties. And then, as time has elapsed and the legal judgements have shown the Committee’s actions to be correct, they have become more hard line and aggressive, inciting fellow members to behave illegally by ignoring the Club Constitution and thereby undermining the foundation of the Club’s democracy. Their most treacherous and damaging act to date being to instruct members (including elderly and ill members who do not understand the serious implications) to pay their maintenance fees to WimPen. WimPen is an ex-supplier of services to the resort whom members dismissed and who have not had a contract to work on the Club’s behalf since May 2017. A hard fact confirmed by the independent arbitrator and acknowledged by WimPen/Onagrup.
They then cry ‘foul’ when owners call for the Committee to suspend them for breaching the Constitution, claiming that their right to free speech is being denied. The Committee has consistently welcomed free speech from members that they are elected to represent. Free speech and votes are what instruct the Committee’s actions. However, the Committee cannot collude with behaviour that crosses the line between free speech and interference with the democratic process of the Committee carrying out the wishes of the majority. That is true democracy.
The Committee is entitled and must consider suspending Club membership for anyone who encourages members to deviate from their responsibilities under the Club Constitution. This includes advising members not to pay their maintenance fees to the Club. Democracy decrees that the Committee shows integrity at all times.
By contrast, Mr Barrow’s and the Los Claveles ‘Independent’ Owners Group view of democracy looks like this:
- Roger Barrow, purported President of the Development Owners Association, elected by less than 2% of owners. Democracy?
- A 6-year contract for WimPen/Onagrup as Administrator of the Owners Association (that controls the running of the resort) voted in by the same 2% of owners, when the statutes clearly state an annual election. Democracy?
- WimPen/Onagrup allowed to use votes by virtue of its ownership at Los Claveles, despite the clear conflict of interest that this represents, and making up a significant proportion of the 2% of owners who were allowed a vote. Democracy?
- Club members, representing over 80% of the resort, denied their legal right by WimPen/Onagrup, and Mr Barrow, to have a voice in the running of the resort. Democracy?
- Denial of free speech – if you don’t toe the party line you are blocked from accessing the LCIO social media group or the new DOA website. If you challenge Mr Barrow, you are outrageously accused of being abusive and your email access to him is blocked. Democracy?
- Blocking Club members from the DOA AGM, and ignoring their voting forms for the 2019 AGM in May, when WimPen/Onagrup’s lawyers had submitted an appeal in January 2019 which acknowledged that Club owners were members of the DOA. Democracy?
- Not allowing owners to speak or ask questions at the DOA AGM, and constantly interrupting them when they did manage to do so. Democracy?
- Removing the agenda item on approval of the minutes of the previous meeting at DOA AGMs because it’s not legally required under Spanish Law, regardless of owners wishes. And conveniently ignoring Spanish Law that requires that challenges raised to the accuracy of minutes, of which there were many in 2018 and 2019, must be included in the agenda of the next meeting. Democracy?
- WimPen/Onagrup’s response to challenges to their illegal actions – “if you don’t like it, take it to court”. Democracy?
- Well, it was taken to court, and in its appeal WimPen has finally acknowledged, as stated above, that Club owners are members of the Owners Association. This revelation will make the Club’s impugnment of the 2018 and 2019 AGMs of the Association a foregone conclusion. Now that is democracy!
The latest, and most damning behaviour by Roger Barrow and WimPen/Onagrup is their refusal to acknowledge receipt of resolutions and nominations submitted by Escritura owners on 7 February for the 2020 Owners Association AGM. The fact is that if Mr Barrow and WimPen/Onagrup’s refusal persists they will end up in court because this is a very serious matter, and true democracy will prevail.
Coming next – Transparency
If you have strong views about the practice of, and challenges to democracy at your resort, please comment below.
Club Los Claveles Limited, Cric, 2 Beaufort Street, Crickhowell, Powys, Wales, UK, NP8 1BN Reg. No. 09719940