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Board conducting unnoticed email meetings and voting on non-emergency open-meeting issues

I need some helps with the wording I might use when requesting records of unnoticed email meetings for the purpose of considering and voting on non-emergency open-meeting subject matter. I think the only records would be email conversations – and I’m not sure how to request these.

Looking at DeBoer v. Turtle Rock III HOA which specifically dealt with the issues of whether a board is permitted to conduct unnoticed email meetings for the purpose of considering and voting on non-emergency open-meeting subject matter.

When I asked about the issue of meeting and voting in email, the Community Manager verbally informed us that Title 10 permits the directors to take action without a meeting if their vote is unanimous.

I assume the Community Manager intended to refer to A.R.S 10-3704 Action by written consent. Which does not exempt HOA’s from the requirements of A.R.S 33-1804 “Open Meetings”.

However, in my opinion, the Community Manager may be incorrect. The tribunal in DeBoer v. Turtle Rock III HOA, concluded that the Board’s “practice of taking actions in the absence of a meeting by obtaining unanimous written consent of the Board members via email violated the charge provision of A.R.S 33-1804.”

Thank you.

5 Responses

  1. Dennis Legere

    Mike;
    You are absolutely correct.

    Your community manager is correct in what he said, but wrong in his application of that fact to HOA’s. The non-profit corporation act Title 10 of the Arizona statutes section 3821 allows a board of a non-profit corporation to take action without a meeting with unanimous consent. In fact based on that long standing statute most HOA bylaws include the exact same provision.

    But Title 33 Chapters 9 and 16 apply open meeting laws to Condominiums (33-1248) and Planned Communities (33-1804). There are no open meeting laws for non-profit corporations. And what the courts have long held , is that when general statutes conflict with more specific statutes the more specific statutes prevail. Any aspect of Title 33 Chapter 9 or 16 that conflicts with statutes in Title 10 the provisions in Title 33 chapter 9 or 16 prevail.

    Arizona open meeting laws for Condo’s and Planned Communities’ require that any meeting of the board must be noticed and must allow the members of the community to attend and participate in those meetings. The only time action by a board can be taken outside of a noticed and open meeting is for emergency meetings, that cannot wait for the 48 hour prior notice. Many attorneys and community managers also confuse the issue further by saying that executive session meetings can occur by e-mail. While again technically accurate because the members are excluded from attending and participating in executive meetings of the board. they forget that even executive sessions must be noticed 48 hours in advance of the meeting, unless it is an emergency and the action or subject of that meeting cannot wait the 48 hours for the notice to occur.

    The open meeting laws go on to describe what must be done after an emergency meeting of the board.

    I’ve heard many arguments that e-mails are not meetings so therefore the open meeting laws do not apply. To that I simply answer that in 1997 the Attorney General of Arizona cited in an official opinion that in the absence of definition of what constitutes a “meeting” in Title 33, you can go to the only other definition of the word “meeting” in statutes and that is in Title 38 for public bodies. The definition in that Title (38-431 (3)) is clear and in detail discuss types of e-mails that constitute a meeting. That particular statute was modified last year to incorporate another Attorney General opinion directly related to the use of e-mails.

    The most powerful aspect of the open meeting laws for HOA and Condominiums is the public policy statement contained in those statutes. In 2017 I initiated a bill that include language into that policy that specifically held the board and the community managers responsible to ensure that if there was any doubt in whether the open meeting laws applied to clear that doubt in favor of open meetings. That was the first time where a so called community manager was held responsible for anything in statutes.

    Clearly they (the community managers) have not gotten that message. It is about time that AACM and CAI start including in their so called training programs the development of community managers ability to read the law, and the governing documents.

    Dennis

  2. Dennis Legere

    Mike ;
    Write me at the help@azhoc.org relative to your record request and I’ll help you out. You will most probably get a response that the association does not keep e-mails as official records of the community, but that is hog wash. If they discussed community business or conducted community actions in written form (which the e-mails are ) they are records of the associations and required by ARS 33-1805 to be made available to any member so requesting. In fact in some cases if the board does not conduct it’s communication on a separate e-mail accounts, the board members have been required to provide their entire e-mail history from their personal e-mail accounts in response to subpoena’s from the courts. This is not a small deal, and boards should be must more cautious in not conducting community business via e-mail.
    This was a great question and I’m glad you posted it so everyone can see.

    Thanks
    Dennis

  3. Mike Collins

    Dennis,
    So… with respect to non-emergency business discussions and decisions.

    Our committees and boards are almost helpless to do anything until there is a meeting. Open meetings requirements is a crushingly slow and inefficient way to conduct trivial non-emergency business. Meanwhile, the CM makes all decisions without us. If we try to alter his decisions via e-mail or have any discussion via email he shuts down the email discussion with the phrase “HALT – open meeting violation”

    If directors and committee members should not use email to discuss non-emergency issues – and if they should also not use unanimous consent via email to make decisions without a meeting, pursuant to ARS 10-3821 or the Bylaws, how are committees and boards supposed to accomplish anything?

    There must be something we’re missing.

  4. Rob Falko

    It’s fairly easy to find information on what boards are not supposed to do – a little bit harder to find good information on the best practices boards and committees might use to conduct effective, efficient working meetings while still respecting open meeting laws.

    Not very surprising that many sites in the web advise readers to rely on the management company and their vendors to conduct most of the business between meetings. And for routine, repetitive, cyclical stuff, that probably makes sense. But not for large projects and complex decisions.

    Interestingly, a few sources of knowledge recommend a new sort or “radical openness”. As costs for video streaming and conferencing have plummeted – and cameras and go-pros everywhere – some sites are recommending televising or video streaming work sessions between meetings – at least for city council. Televised work sessions with video streaming *might* be a tool that allows directors (with or without quorum?) to discuss and study complex problems between regularly scheduled board meetings.

    Found an article from 2006 on the Arizona Daily Sun titled “Council work sessions televised more often” stating that “Flagstaff City Council work sessions are now televised three times each week on Cable Channel 4” https://azdailysun.com/news/local/council-work-sessions-televised-more-often/article_e7ae3981-cd1b-5cea-916e-f80dc35c4a91.html}

    Also some great information on the Michigan Municipal League’s website, http://www.mml.org. This one pager was particularly helpful “Work Sessions – Use by Legislative Bodies”.

    From the MML one-pager:
    “Work sessions are intended to provide opportunities for council/board members to study difficult issues,
    gather and analyze information, and clarify problems. The public must be given an opportunity to address
    the council/board. If council is going to have a meeting, and it is a posted public meeting, then people must
    have an opportunity to speak under the Open Meetings Act. That is perfectly fine, but rules governing public participation ought to be enforced, and those in attendance should be made aware of the
    purpose of the meeting—to study issues, not to take action.

    Citizens often aren’t aware of or understand the differences between work sessions and regular sessions.
    This often gives rise to the perception that the decision process in the regular meeting is rigged
    beforehand. There are no easy answers to this problem. The best that can be done is to communicate, as
    much as possible, the process by which council makes decisions. Make it clear that council holds work
    sessions for difficult issues, that these sessions are open to the public, and that no decision is made except
    in a regular session.”

    The MML one-pager also mentions the importance of educating citizen on how Open Meeting Laws might be used to prevent boards from doing anything productive between regular board meetings – and how the televised or streaming processes might be used to allow board members to meet publicly in order to analyze and clarify problems while still allowing citizens and homeowners to watch the discussions.

    If boards can webcast and support remote homeowner participation – committee meetings should also be allowed to webcast and support remote participation.

    Dennis – any thoughts on how technology including video webcast might be used to support a new “radical openness” for HOAs in Arizona?

    1. Dennis Legere

      Rob;
      Great comments and post. I could not agree with you more. Current Arizona statutes are considerably out of date and are very limiting with the allowed options for a board or members to meet remotely. I’m actually trying to address that with my top priority bill this session. Amoungst other things i’m Looking to broaden the flexibility of boards to use technological means to conduct meeting and to allow both board members and community members to participate remotely. The variety of options are limitless and advances in technology will only make these options better and simpler to use. As you so well stated is the communities faith In the decision making process of their board of directors comes in transparency and openness inconducting its business. We do not seek to overly burden boards with the open meeting laws only to ensure that those boards, community managers or most importantly association lawyers do not circumvent or simply ignore the law because they can because only the homeowners will hold them accountable. Many board members have complained to me that the provisions in the law relative to informal meetings of a quorum is overly restrictive. What I tell them is i’m willingszzzzzz, to try and work on that language but I need to first get acknowledgement that both AACM and CAI understand and respect the open meeting laws and will hold their clients accountable to know and support those laws, before I do anything to change the current language in the law. That will allow social gatherings of board members where incidental discussion of their community may take place, or opportunities where a quorum of the board walks around their community to look for issues that they and fix or address to improve their community. These make sense for communities but unfortunately I cannot trust current community managers or community attorneys to use any common sense with what they advise their communities to do.
      Back to the original question, business applications like go to meeting and basic conference lines or video conferencing like face time or Skype are all means that could allow both board and members to participate remotely. While my current proposal stops short of a totally virtual meeting, I still require that at least some board members participate in a physical meeting so that homeowners not comfortable with technology can still participate in person. Some day that is not out of the question.
      Thank you for your comments and site references.
      Dennis

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