Comments or Questions

Nick,

Neither the planned community act nor the condominium act specifically addresses this issue. I have proposed legislation this year to make this clear in the applicable statutes. What is clear is that the open meeting laws for public bodies do in fact limit any and all discussion in open meeting to item specifically included and identified in the agenda for that meeting. While i’m not an attorney there is legal precedent that if a statute is silent on an issue one can go to similar statutes for guidance, even if the two statutes are directly cross referenced. See Attorney General opinion 97-012. I will say that there was never an legislative intent to make the very strict and restrictive open meeting laws for

As for the president controlling the agenda, this is the typical process and power given to the board president. They mostly ask for any request from the other board members but are not required by any law or rule to include those suggested topics. Having said that i will say that ignoring he request of other board members is highly suspect and the board should consider calling for a vote to remove that board member from that office. He would still be on the board but no-longer the president. Remember it was the board that elected the officers not the members and the board can remove any board member from any office by a vote of the board.

As for the election process your Bylaws should have guidance on that issue it is not and should not be addressed in law. If the bylaws are silent on that issue than the board has many options, they can run a run-off election between the two candidates for the last position. They also could if the bylaws allow, have both the candidates added to the board at least for one term. This would most likely cause the overall board population to be an even number which could cause issues in the future, with quorum and tied votes of the board.

What cannot happen is anyone on the board deciding who is the elected board member, for any reason.

Dennis

Eva
You are absolutely. Correct. That statute was written to grandfather any association who’s declaration was recorded prior to the effective date of that legislation. You are also correct that any association that modifies its declaration and records that amendment would loose that grandfather protection and also lose the ability to regulate roads that are public property and not private property. Simply invoking Rules does not trigger this action.

Dennis

Joseph.
Under Arizona law any board member may be removed from office with or without cause except a board member appointed by a declaration during the period of declaration control., by only one process. That process is one where a petition is approved by 25% of the voting community to request a meeting of the members to vote for the removal of that board member or members. The majority of members voting decides the issue. Your questions relative to the legality of actions described i’ll Not comment on because I’m not an attorney. The fact is if you want a board member removed circulate a petition to have the board call a special meeting of the members to accomplish that. If you.cannot convince 25% of the voting members to do that then you have more work to do either convince the homeowners of your concerns and fact or you have to wait until the offending board members term is over and convince your fellow homeowners to elect someone else.

Joseph;

Assuming you are in an HOA the state law is clear. The association must provide access to any association record within 10 business days of a written request fo those records. There could be nothing clearer in all of Arizona Law yet record request are by far the violated provision of HOA governance and the single most litigated issue. Make your request specific and reasonable , for example do not ask to see all financial records since the beginning of time. What I always tell people in requesting records is be as specific as possible. Don’t go on fishing expeditions. And don’t ask for records that you will not be able to understand once you get them. Know what you want to ask for and only ask for that. One important point to remember is that the association is under no obligation to create a record that does not already exist. So don’t ask for a summary of multiple years of information if that summary does not exist. If at all possible stray within the current year to keep the request reasonable and to allow the association to obtain the information in a timely manner. The law only requires that the association make the records available for you to review. It does not require that they give them to you. If you ask for a copy of the records they are allowed to charge you no more that $0.15 per page. If you want copies ask for them up front. If you would like electronic files sent to you in e-mail there is no harm in asking, they are not required to send you electronic files. But in many cases it is easier for them to do so, if their records are electronic.
The is specific with the request being written. An e-mail is acceptable as a written request but can be argued that they never received the request. So you want to make sure that you have a record of the associations receipt of that request. Some e-mail programs allow for read receipts to be provided. If not and if for some reason you believe that the association will ignore your request then send the request by certified mail for the proof of receipt. If the association does not respond or does not provide you access to the requested records, I would provide them a simple e-mail reminder that the law either ARS 33-1258 for condo’s or ARS 33-1805 requires that they provide the requested records in 10 business days and if they fail to do so you will file a petition to the Arizona Real Estate Commissioner to force them to do so. That will end up costing them $500 if they are forced to provide the records and comply with the law.
This petition process does not require an attorney , but will cost you $500 per issue to pursue. If you prevail the association will be forced to pay you back your application fee. See our reference information page for all the information about the commissioners dispute resolution process.
Thanks
Dennis
PSJoseph actually called me after his post and I was able to answer his questions directly. This response is for everyone else’s information and use.

I have a board HO meeting in March and plan on bringing up serious safety and financial issues. I am told to expect the same treatment as described above.
One for the questions is to show the Homeowners proof of funds in deposit for the HOA. I am told that the Secretary will not produce the doc’s
Other than hire a lawyer. What can I do?

I wanted to add my thoughts here because I too was recently abused where a board member came out and called me fat and then gave me the middle finger obscene gesture. I cannot speak without the board being rude to me. I’ve seen the President abuse other HO’s. I just don’t get why these personality challenged people run for the office. Same person won’t return phone calls or e’s of residents she does not like. The Community Manager is non-effective but has a great accommodating personality at the meetings and then immediately turns her back to HO’s and hides in her office. It’s a war zone. Don’t buy in an HOA.

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, 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?

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.

Rob
Thank you for sharing this experience. It is something that happens all too often in communities across this state. Unfortunately their are no laws to protect from this type of abuse. Regulating human behavior is not something that the legislature will address other than when it crosses the line to become criminal. My best advice if you witness this again is to record the event on your cell phone and share it with your community. Any board member that treats homeowners has to be removed from office, and taken away from a position of power over other other homeowners. I’ve made sure that every homeowner has the right to record any meeting of he board and that includes interactions of the board with members.
The greatest power of the homeowners is to elect and remove board members that do not display the values and expectations of the community. Exercise that power and your community will be better for it.
Having said this as home owners you also have a responsibility to act as this homeowner did and deal with the board with calm and respect for their responsibilities. You may not like their decisions on issues but if they made that decision based on what they truly believed was in the best interest of the entire community, that is why you put them in that position to make the hard decisions.
As for the community manager his or her behavior is typical of what I’ve experienced. While the HOA trade organizations continue to advertise that professional community help boards run better communities, from my experience they seldom do anything to correct or help mitigate bad behavior of board members and thereby add no value to the community in this area. As I’ve said in many of my responses if the HOA industry really wanted to make these communities better places to live and to improve property value they would train their community managers and attorneys to help advise these board members on what they should do and behave rather than to focus on what they can get away with.
As for the homeowner involved thank her for me for not being intimidated by the boards behavior. You would be appalled how many times I hear from single or elderly women who have been treated in the same way by boards and community managers. You can all be assured that that behavior would not have happened if a man raised the same question. All the more reason to remove these people from a position of power in the community.

Dennis

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