Question about Bylaws for AZ

Our HOA has a section that allows

"The directors shall have the right to take any action in the absence of a meeting which they could take at a meeting by obtaining the written consent of all directors. Any such written consent shall be filed with the minutes of the proceedings of the Board. Any action taken by the Board pursuant to this Section shall be effective when the last director signs the consent, unless the consent specifies a different effect date."

Has anyone in Arizona had this type of action reviewed by legal counsel to see if it is still valid? With the open meeting laws and the section

"Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the association and board of directors are open to all members of the association or any person designated by a member in writing as the member's representative and all members or designated representatives so desiring shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings."

would mean (to me) that NO actions can be taken outside the board meeting, except for such things as an emergency.

Can anyone shed light on this conflict?

Robert, I don't see a conflict. The first statement allows the Board to take action(s) outside of a Board meeting. Sometimes situations arise between Board meeting which need to be handled promptly. The second statement allows members to attend and speak at Board and Member meetings. Both seem reasonable to me.

Robert, you are correct that Board decisions made outside of Board meetings do not provide for homeowners comments. However, while their input is allowed at Board meetings, in the final analysis it is the Board members who make all decisions at Board meetings as well as between Board meetings. If you want to be involved in the decision process perhaps you should try to become a Board member.

Robert - if you are concerned about your board violating Arizona open meeting statue, you can go to http://www.azoah.com/ and file for a hearing before an administrative law judge. It will cost $550 to file one complaint, or $2,000 if more than one. If the ALJ agrees with you, he will require the HOA to reimburse you the filing fee as well as he has the poser to assess the HOA with a fine. Harold

You are asking exactly the question I asked in the first place (but worded more clearly). We do have a few sections that are old enough, but the HOA is only a few years old. However, the laws have changed since. I have one legal opinion which states the section has been voided by the AZ law, but I am looking for someone else who might have gone down this path as well.

Of course, we are not talking about the emergency clause. I heard a lawyer give the example that if you have time to ask a lawyer if it is an emergency, then it probably isn't one.

As far as taking this to court, that is just more than I wish to do. It may actually take a long time, it may cost me money out of my pocket until a judgment is given in my favor and then if a fine is levied, I still have to pay part of the fine since I am a member of the HOA. The real solution is to expose the problem and let the other members know so that next elections can cure the problem.

Run for the board? Been there; done that. I believe more can be done outside the board membership than inside when you are always in a minority.

I am not sure of what meeting minutes you are referring to. If there was an action outside the meeting, then there would be no meeting minutes.

As has been stated many other places, when a board chooses not to follow the rules, then they will not want to address the problems of the inconsistencies. They seem to do what the want. When no one challenges their actions, they get away with their actions. Homeowner apathy is the path to the validation of an illegal action.

Robert:

The law allows the board to take "An Action without a Meeting". The law allows boards to make decisions without having a meeting everytime. However like Roger said, they have to be recorded.

Harold:

I was making a statement from his CCR's. He stated:

Our HOA has a section that allows

"The directors shall have the right to take any action in the absence of a meeting which they could take at a meeting by obtaining the written consent of all directors. Any such written consent shall be filed with the minutes of the proceedings of the Board.

The first sentence is an action without a metting, but needs to be recorded in the Minutes and have all of the boards consent.

Everyone seems to missing the point of the question I raised. It doesn't make any difference what the bylaws state, it doesn't make any difference about having it recorded in the minutes -> WHEN IT IS AGAINST STATE LAW.

I just want someone to validate my contention it IS against state law or state why is allowed under the law.

Robert - Here is the entire Arizona statue regarding Planned Community open meeting law. You will note it says ALL meetings are open except for those specifically spelled out which can be closed. No where does it address "emergency" meetings. So any emergency meeting not involving any of the exclusions would still be required to be open. You will note it says "notwithstanding" which overrides your HOA rules on this subject.
If your board is holding and conducting meetings not open to the membership on an emergency basis you can file with a state administrative law judge who will determine if your board is in violation of state statues.

http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/33/01804.htm&Title=33&DocType=ARS

"There is one issue of when notice must be given. A different issue is if the meeting must be open. My specific question was relative to the question of what can be done outside of a valid meeting. Proper notice is a prerequisite to make a valid meeting."

Ohhhh. Now I get it - I think. If notice of a meeting isn't given then how can the outcome/actions be valid.

In MD our law says pretty much the same thing, fortunately our by-laws have the same exclusion criteria for closed meetings as the law. A closed meeting is for consultation with lawyer, investigation into criminal activity, privacy protection, personnel issues, bargaining and activities related actions previously voted on, etc. Do any of your docs get into these specifics?

An interesting aside (that has been reiterated on this string) is that these items must not only be recorded but also be REPORTED in the next meeting minutes. Our by-law actually goes on to say that [results of closed meeting] "shall be made available so as to reasonably notify members of the Association within fourteen (14) days after the meeting"

There is another string on this site about communications, conducting daily actvities, information gathering etc. outside of a meeting. In this case though (and the one I just referenced) the results, IMO, need to be discussed at the open meetings. I also think that the law for open meetings trumps your docs. Others will chime in with their knowledge.

Tracy