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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.

2 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

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