BOARD & ADVISORY COUNCIL ACTIVITIES FALL 2018 TO DATE (February 5, 2022) (Volunteer Board & Advisory Council have operated ECAC’s Center without any paid administrative support from April 2019 to date)
A. REGAINING POSSESSION OF THIRD FLOOR APARTMENT STATUS: CLOSED
Meeting with Occupant and Attempting to Settle
1). Met with the unauthorized third floor Occupant in Nov 2018 in an effort to regain possession of the apartment. Regaining possession would: allow ECAC to recover its files and supplies, allow the apartment to possibly serve as a source of income as two identified non-profits seeking headquarters could be approached to consider the Center, facilitate the removal of $5000 in annual property taxes applicable only to the apartment, and allow for exploration of options to save the Center, such as development partnerships. (ECAC formally notified occupant to vacate the apartment in March 2018):
• Attempted, unsuccessfully, through face-to-face conversation, to identify a grievance or explanation for the continued unauthorized occupancy.
• Attempted, unsuccessfully, to settle the issue, in lieu of the cost of a legal proceeding, by offering Occupant $18,000 which had been donated to ECAC to be used to regain possession.
• Occupant refused the settlement (while paying no rent, utilities, telecom services) and continued this occupancy for approx. 4 years after the March 2018 notification identified above. (Several significant roof leaks with damage to ceiling and contents were observed upon ECAC’s repossession)
STATUS OF #1 : With Donor’s approval, donated funds were used to pay ECAC’s mortgage.
Obtaining Pro Bono Assistance
2). Sought pro bono legal assistance from various legal clinics to assist in recovering possession of the third floor apartment (unsuccessful).
3). Applied to the DC Bar Pro Bono Program to provide assistance.
4). Contacted leaders of clinics which had assisted ECAC and the community in organizing small businesses on Georgia Avenue (Georgia Avenue Business Alliance (GABA) for advice on DC Bar application and for assistance in advocating on ECAC’s behalf focusing on ECAC’s community contributions .
5). Provided and reviewed documents needed to engage pro bono attorneys identified by DC Bar.
6). Met with DC Bar representative and pro bono attorneys to discuss the scope of the services being sought and to be provided.
Filing Action in DC Superior Court (Trial Court) to Regain Possession
7). Worked with pro bono counsel in preparing and reviewing June 13, 2019, ECAC filing in DC Superior Court to regain possession of the apartment. In a July 10, 2019, letter to ECAC, Occupant now demanded $250,000 by certified check to compensate for wages owed and, in return, would vacate the apartment (money which ECAC does not have as its only asset is the building).
• Met with Occupant in unsuccessful court-required mediation. Occupant then sought another significant amount to vacate the apartment (money which ECAC does not have as its only asset is the building).
• Provided over one thousand pages of responses to Occupant’s interrogatories.
• Provided Advisory Council member Affidavit.
• Attended three hearings in Superior Court.
• Occupant’s defense: ECAC cannot evict him. ECAC does not own the apartment as S. Robinson loaned money to ECAC at the time of ECAC’s purchase of 733 Euclid, and he is S. Robinson’s common law spouse.
• ECAC’s position: ECAC should be granted summary judgement. Publicly available documents (deed) support ECAC’s ownership. ECAC pays the mortgage, taxes, etc. (Note: Publicly available document also confirms that the loan with interest is a secured loan with payment accruing to S. Robinson’s for-profit corporation (Emergence, Inc) and upon her passing, her estate. S. Robinson resided in the apartment under a written agreement with ECAC in return for providing facilities oversight).
• Trial Court decision: January 15, 2020, summary judgment in favor of ECAC
STATUS OF #7 : January 15, 2020, summary judgment in favor of ECAC
8). Reviewed and provided comments on ECAC filing in response to Occupant’s Motion for Reconsideration (which Occupant sought despite the publicly available documents showing ECAC’s ownership). Trial Court Decision: Motion for Reconsideration denied on March 31, 2020. (Emergence Community Arts Collective v. Zakiya, Case No. 2019 LTB 012322 (D.C. Super. Court).
STATUS OF #8 : Motion Denied
Responding to Occupant’s Appeal to the Court of Appeals
9). Reviewed and provided comments on ECAC filings in response to Occupant’s appeal to the Court of Appeals, (Occupant appealed despite the publicly available documents showing ECAC’s ownership). Court of Appeals Decision: Judgment in favor of ECAC. (Memorandum Opinion and Judgment, (Zakiya v. Emergence Community Arts Collective, Case No. 20-CV162 (D.C. Oct. 18, 2021).
STATUS OF #9 : Judgment in favor of ECAC October 18, 2021
Responding to Occupant’s Requests for Stays of Eviction
Stays are granted if there is a likelihood of success on the merits.
10). Attended hearing in trial court on Occupant’s first application for Stay of Eviction. ECAC did not oppose this first request, allowing Occupant additional time to vacate and stay would have to be requested again in 10 days. Eviction scheduled for March 2020. COVID Moratorium intervened, and while ECAC believed the Moratorium was not applicable as this situation did not arise from the pandemic, the US Marshal’s Service had postponed evictions
11). Reviewed and provided comments on ECAC’s filing to reinstate eviction upon expiration of the Moratorium.
12). Reviewed and provided comments on Occupant’s Request for Stay of Eviction filed with the Court of Appeals. Court of Appeals Decision: Stay denied. Occupant extended his occupancy for an additional 16 months and was evicted on October 27, 2021, by the US Marshal’s Service after the Moratorium was lifted.
STATUS OF #12 : Stays denied.
13). Met with pro bono counsel and the Marshal’s Service. Changed locks as required for eviction.
STATUS OF #12 : Eviction on Oct 27, 2021
B. DEFENDING AGAINST WAGE THEFT CLAIM STATUS: ONGOING
Responding to Complaint filed with DOES, Office of Wage Hour
1). Worked with pro bono counsels in reviewing August 2019 Wage-Theft claim against ECAC, filed by Claimant, (the unauthorized third floor apartment Occupant) with DC Dept of Employment Services (DOES), Office of Wage Hour, seeking $115,071.50 in compensation for 4,925 hours allegedly worked as ECAC Executive Director for a 5 year period from October 2014 to September 2019.
STATUS OF #1 : DOES denied Claimant’s claim
2).Reviewed Chart created by Claimant as a part of his DOES filing which lists hours and wages for the period August 2016-Sept 2019 despite Claimant occupying the third floor apartment rent, utilities, and telecom services free for five years before S. Robinson’s passing ( 2012-2017), and for 26 months after her passing, Sept 2017-Sept 2019, the last date of the alleged employment listed on this Chart. (Note: his occupancy continued for an additional 2 years to October 27, 2021, when he was evicted).
3). Posted on premises DOES required notice to employees despite ECAC never having employees.
4). ECAC’s Observation/Conclusion: There was no employment; no one supervised him or evaluated his performance; there was no contemporaneous record of his work, and he occupied the apartment rent, utilities, and telecom services free during this entire period of his claim. In addition, ECAC paid Community Vision Partners, (Steve Shaff’s company), to raise funds and manage the Center from Jan-Dec 2018. During the period Jan-Dec 2018, Community Visions also retained some administrative assistance to schedule and market the Center. One of these individuals continued to provide services for some months during the period Dec 2018-Mar 2019. From April 2019 to Sept 2019, unpaid members of ECAC’s Board and Advisory Council without any admin support operated the Center. As to the latter period, Claimant, who lived at the Center may have opened the door for an individual or group which was either not scheduled to be there or was using the Center outside of their scheduled time. If so, he did not report it to ECAC as an employee would.
5). DOES Decision: On January 14, 2020, DOES issued a Notice of Initial Determination finding that ECAC had not violated the Wage Theft Act. Specifically found that there was no employee/employer relationship between Claimant and ECAC, notwithstanding that he took on some of the duties of the organization’s founder, who Claimant describes as his common-law wife, after she passed away.
Responding to Claimant’s Appeal to the Office of Administrative Hearings (OAH)
STATUS: Awaiting OAH decision
6). Reviewed and provided comments on Claimant’s appeal to OAH ( Zakiya v. ECAC and Office of Wage Hour, Case No.: 2020-OWH-00010)
7). Attended and testified at 2 full days (6-7 hours) of evidentiary hearings on July 15, 2021, and July 28, 2021.
8). Reviewed and provided comments on ECAC’s post hearing brief.
9). ECAC’s position (largely excerpted from its Post-Hearing Brief):
■Under the Wage Theft Act, an employee must file a complaint with DOES no later than three years after the last date upon which the alleged wage payment violation occurred. Claimant filed his claim with DOES on August 2, 2019, and so therefore can only jurisdictionally recover amounts allegedly due after August 2, 4 2016. To the extent Claimant seeks amounts owed prior to August 2, 2016, those claims are time-barred.
■In 2014, Ms. Robinson raised the possibility of a one-time stipend for Claimant with the ECAC Board for Claimant to “handl[e] opening/closing [the Community Center] and related building items.” However, the Board did not approve the request (as there was no funding), and Ms. Robinson did not raise the issue again. Claimant, by his own testimony, did not even become aware that Ms. Robinson – who he alleges was his common-law wife – had requested he be paid a stipend until after she passed away and he found copies of the Board minutes.
■After Ms. Robinson passed away in September of 2017, ECAC Board was aware that Claimant continued to live in the apartment. Recognizing that Claimant was grieving ECAC Board did not immediately address his occupancy.
■The Board was aware that after Ms. Robinson passed away, Claimant performed some of her building management tasks. The Board was also aware that, after Ms. Robinson passed away, Claimant took on several other tasks, which included answering phones at the Center, participating with another volunteer on a grant application submission, working on ECAC’s website, and coordinating scheduling with community organizations. A former volunteer ECAC Board member and current member of ECAC’s Advisory Council also asked Claimant to access a computer on which records related to ECAC were stored. ECAC did not believe that Claimant was acting as an employee, but rather as a volunteer, who was also benefitting from residing at the Center and therefore did not keep any records related to the time spent on these tasks. ■ECAC provided Claimant with a $1000 gratuity stipend in 2017.
■ECAC Board considered “hiring” Claimant in November 2017 in the capacity of an independent contractor, not as an employee. The unsigned service agreement explicitly states: “The contractor is an independent contractor and is not an employee or agent of the client .”
■Claimant also did not keep any contemporaneous records of the hours he claims to have worked. The only accounting of his hours that he has provided for consideration was generated by him in response to a request from the DOES examiner for an accounting of hours that he claims to have worked.
■Claimant post hoc accounting of his hours, together with his testimony at the evidentiary hearing, is not credible and is not sufficient to prove the hours he allegedly worked for ECAC. Claimant claims to have worked 17-18 hours a day, seven days a week, for nine straight weeks, often “falling asleep at the computer.” Claimant’s accounting and recollection are not credible for a variety of reasons.
■At the outset, it is prima facie unreasonable that an individual would have spent 125 hours per week, an estimate described by Claimant as “probably conservative” operating a small non-profit that rents space for community events. Even assuming for sake of argument that Claimant completed all tasks completed by Ms. Robinson before she passed away, there was credible testimony that those tasks only took her 60 hours per week. 5
■There was credible testimony that the task that Claimant alleges took him substantial amounts of time, creating custom excel sheets of ECAC’s finances, was not something that he was asked, directed, or required to do; rather, it was something he chose to do.
■No representative of ECAC had the level of direction or control over Claimant sufficient for him to be considered an employee. Claimant specifically informed Board members that they did not have any oversight of him and should not even speak with those he felt were assisting him, without pre-clearance. Several ECAC Board members quit their volunteer positions rather than continue to “deal with” Claimant —not evidence of an employer-employee relationship.
■ECAC’s March 2018 formal notice directed Claimant to not perform any duties on behalf of ECAC. Claimant reported to no one at ECAC. Claimant did not identify specific work done. No contemporaneous record of this alleged work. He created the hours and the wages.
■Moreover, Claimant benefitted from continuing to live at 733 Euclid occupying furnished third floor apartment rent, utilities, and telecom services free for 4 years after the March 2018 notice to him to vacate the property.
C. MANAGING BOARD OF DIRECTORS & ADVISORY COUNCIL STATUS: ONGOING
1). Updated ECAC’s Bylaws to comply with DC Nonprofit law and provide for the missing position of Vice-President and other missing provisions.
2). Adopted new revised bylaws
3). Reached out to community leaders to identify potential board members.
4). Undertook recruitment campaign for recommended new board members (almost all did not want to be involved because of the negatives).
5). Provided annual Conflict of Interest Form
6). Renewed and paid Board insurance
D. FUNDING THE CENTER
Increasing revenue
1). Applied for grants (annual DCCAH, Historic Preservation)
2). Sought donations through monthly newsletter request.
3). Sought donations through web site.
4). Initiated Go fund me campaign.
5). Met with “Friends of ECAC” group seeking to provide funding and volunteer assistance (followed up with help on a grant which was not awarded to ECAC, group dropped off).
6). Made direct financial contributions to ECAC to cover expenses (by Board members).
7). Reviewed long-term tenant leases, which were not being complied with.
8). Met with community group (SMRCUC) interested in volunteering. (followed up, group dropped off) 6
9). Reviewed programming changes, marketing, social media, etc. in sections below with a view to increased revenues.
10). Held in Her Honor Celebration of Sylvia’s Life
Addressing impending funding crisis
11). Met with director of Dept of Housing and Community Development to follow up with focus on affordable housing options
12). Met with affordable housing community leaders from Manna
13). Identified and met with possible funding sources, including politicians such as Muriel Bowser, Eleanor Holmes Norton (former in Her Honor Recipient) Brianne Nadeau .
14). Evaluated Evergreen Partners offers of partnerships to develop the property, pay off liabilities and build and fund a new 100% owned Center. (Developer changed financial incentives to where it did not cover ECAC liabilities- became a nonstarter for ECAC)
15). Evaluated Stonehenge Development offers of partnership to develop the property, financial incentives to pay off liabilities and build a leased new Center ($1 per year for 99 years) with financing for initial operations or build a 100% ECAC-owned Center. (Board tied on this offer)
16). Met with Howard University representatives to consider donating Center with retention of some of its historical use (unsuccessful)
17). Met with community groups (SMRCUC) seeking to fund the Center. (unsuccessful)
18). Met with two community groups indicating an interest in partnering with ECAC to save the Center (unsuccessful)
19). Met with five other developers regarding saving the Center (no offers to cover the liabilities and save the Center)
20). Sought and obtained extension of line of credit payment
21.) Sought and obtained addition to line of credit loan 21. Applied for and received DC Mayor Pandemic Grant (awarded- $5000)
22). Applied for SBA pandemic loan (requiring personal guarantee) to cover lost revenues allowing ECAC to explore opportunities to save the Center.
23). Sought and obtained deferrals from mortgagor, and extensions to mortgage agreement to explore opportunities to save the Center.
Reducing Expenses
24). Contacted DC Tax & Revenue to address removing taxes for third floor apartment as ECAC no longer had access to the space and efforts were made to remove it from use as a residence but the pandemic had halted this process.
25). Reviewed and reduced trash collection service
26). Reviewed telecom contract 27. Reapplied for property tax exemption ruling after it was incorrectly removed by OTR
D. MANAGING PERIODIC FINANCES STATUS: ONGOING
1). Filed 990 in 2018, 2019, 2020
2). Paid utilities, telecom and trash services
3). Retrieved and responded to mail
4). Paid mortgage
5). Paid liability and property and board insurance
6). Paid for executive support Oct-Dec 2018
7). Paid for hourly administrative support Oct 2018-Mar 2019
E. ATTEMPTING TO RETRIEVE ECAC’s FACEBOOK PAGE & CREATING NEW FACEBOOK PAGE
STATUS ONGOING
1). Attempted to regain ECAC’s Facebook page by contacting the individual directly on the page which at one time allowed for public comments
2). Contacted face book, informed them that at some point an authorized individual, who is no longer authorized uses the name and address for ECAC and will not release it to the organization.
3). Contacted media to highlight need to advise small nonprofits re how to avoid the pit falls of placing their face book page on an individual’s face book page – highlight need to have more than one administrator— (Reached out to Wash Post columnist, Michele Singletary, John Kelley)
4). Created an alternative Facebook page 5. Posted to Facebook page
F. MARKETING THE CENTER
1). Partnered with members of the community to initiate new programming including Juneteenth Celebration
2). Partnered with members of the community to initiate new programming a comedy competition
3). Engaged the Center in Lower Georgia Ave Main street activities to promote the Center such as Holiday Lights marketing competition.
4). Revised GABA Face book pic to include ECAC as a historical site– cross promotion
5). Developed logo for monthly newsletter
6). Prepared monthly Newsletter
7). Distributed Newsletter to e-mail list
8). Posted to face book page
9). Met with the Washington Informer Reporter to respond to stated motive for doing an Article (which was to look into ECAC inaccessibility over two month period).
10). Prepared Response to Washington Informer
G. MANAGING RENTERS’ USE & SCHEDULING OF THE CENTER
1). Developed weekly Schedule of Activities for the Center
2). Scheduled new users of the Center.
3). Undertook review of leases of long-term tenants as ECAC was only receiving a percentage of the lease amounts
4). Updated guidelines for use of the Center
5). Updated Application for renting the Center
6). Addressed use of marijuana on the property by posting new signs to renters and their clients and highlighting this in Guidelines
H. MAINTAINING THE CENTER
1). Cleaned bathrooms, mopped, and swept floors, cleaned mirrors
2). Replaced and stocked toilet paper and paper towels
3). Stocked bathroom air fresheners
4). Paid for cleaning supplies, toilet paper, paper towels, and air fresheners
5). Removed trash
6). Paid for trash bags
7). Painted walls (internal and external) and stairs (back stairs and inner staircases)
8). Paid for paint supplies
9). Pulled weeds and cleaned grounds
10). Addressed rodent burrow issues in garden
11). Paid for grounds to be mulched
12). Addressed neighbor removing garden beds and regrading property
13). Addressed broken hot water tank. Arranged for donation
14). Addressed claim by neighbor of water damage from ECAC parking lot and raised beds
J. ADDRESSING SECURITY AT THE CENTER STATUS: ONGOING
Individual living in conference room and his confrontation with another renter (from “Spit Dat” group))
1). Contacted Police.
2). Obtained a restraining order.
3). Restricted access to conference room.
4). Restricted access to second floor hall bathroom,.
Renter storing materials and occupying the building (including at 7:00am) when no classes were scheduled or paid for
5). Addressed issue of complaint from Muhammed School long-term re hourly Renter in the classroom area at 7am.
6). Required individual to pay his subsidized rate ($10 per hour) for classes he was holding and to not occupy the space hours in advance and hours after.
7). Locked conference room after Renter’s classes.
8). Removed individual’s belongings from Conference Room.
9). Notified individual to retrieve belongings.
Individual living under the porch
10). Contacted DC homeless agency officials.
11). Contacted Police. Securing the Parking Lot & Miscellaneous Issues
12). Placed locks on inner gate and locked back gate
13). Addressed frequent car break-ins on Euclid---posted more signs, reporting to police
K. ADDRESSING SYLVIA ROBINSON’S ESTATE POSSESSIONS AT THE CENTER STATUS: COMPLETED
1). Gained access and identified and removed ECAC’s belongings from third floor apartment
2). Facilitated walk-through with Sylvia’s sister for her identification of family possessions
3). Facilitated Sylvia’s estate’s packing up of estate’s possessions
4). Facilitated Sylvia’s estate’s removal of estate’s possessions 9
L. SELLING THE CENTER STATUS: ONGOING
1). Assessed financial options and considered fiduciary duty in arriving at decision
2). Interviewed recommended listing agents
3). Selected agent representative
4). Reviewed and signed listing agreement
5). Signed agreement for sale with Buyer
6). Provided realtor access to property
7). Notified first mortgage holder, S. Robinson Estate, Sussman line of credit, SBA loan
8). Notified owners of property left at ECAC re clearing out of facility
9). Identified possessions to be donated to nonprofits
10). Developed a checklist of actions which need to be taken
M. INFORMING THE COMMUNITY STATUS: ONGOING
1). Responded to B. Rousson Inquiry
2). Began process of notifying the community