Open Meeting Law Arizona

Hi,

Recently our Board violated the opening meeting law and gave approval to a homeowner to paint his house a different color which clashes with some of the homes in our community.

Neither the Board nor the management company will comment or reply on this issue.

What can we do?

Thanks

Our Board is also the architectural committee. During an Executive session they approved the ARC request for the homeowner to paint his house a different color - this was not an emergency. Now we have one house which sticks out like a sore thumb. Many of the homeowners are upset. However, we cannot get the Board nor the management company to comment or reply.

Meetings are not defined in our CC&R's only in the Bylaws which are 11 years old. In addition, the Bylaws only reference meetings of the members and Board and does not mention architectural committee meetings.

I was on the Board for the past three years (not this year); and we always discussed ARC requests in an open meeting, especially if there was a major change which affected the community. Whatever the issue, we thought that the Arizona state laws prevailed over our documents.

Luci - here are Arizona Revised Statues regarding planned communities: http://www.azleg.state.az.us/ArizonaRevisedStatutes.asp?Title=33
stroll down to chapter 16 for planned communities (Since you mention houses, I assume you are not a condominium) Check the Arizona statues for open meetings. They will supersede anything in your documents. You will also note a member has the right to speak during an open meeting before any vote is taken, as well as to speak generally at a specified time during the meeting. You can also request copies of documents and they must be furnished within a specified time. There is no legal reason for the board or management company to be stonewalling you on this issue. Harold

Sorry typo,

should read "the current Board"

Luci

Robert,

What is your recommendation? I hope it is not Beth Mulcahy. She is the attorney for our management company and stated that she could not get involved as it would be a conflict of interest. Apparently, she can only represent the MC and Board.

Thanks
Luci

Robert, you can click on "My Profile" above, then click on "send email" to communicate offline.

That doesn't work for me. If I go to the My Profile at the very top of the discussion area, it only gives me my profile, not Lucy's. Am I doing something wrong?

HOA has to be represented by an attorney>> Luci, wherever did you get that idea? From the HOA's attorney? That is not correct. Go to OAH and read their questions and answers. Your board CHOSE to use an attorney. The expense should be borne by them, not the homeowner members.
By not filing again with the OAH, you are playing directly into the boards hands. This is their attitude: "No one will spend the money to challenge us, so we can do whatever we want." If your filing costs the members often enough, maybe they will rise up and replace this board and MC. Harold

LuciC, please contact me at [email protected]

This is a temporary email so you can get my real one.

Hi All,

No, I am not an attorney. However, I have been on the Board many times and have been an active member of our HOA for 10 years. Therefore, I always try to understand our CC&R's/Bylaws (not an easy task) and keep abreast of the new state laws.

But, this is the first time we have had a "dead beat board"; and we blame the management company more than the directors, who are volunteers.

I believe I know the answer to reason why we (other HO's have sent emails) are not getting any replies.

First, hard core evidence, probably not:

- true, the house has been painted
- my husband and I attend all meetings and nothing was discussed regarding this ARC request
- one board member told us the approval was in an executive meeting, verbal communication, not valid in court

So, when thinking about it, they are guilty as charged; and what can they write without incriminating themselves? Nothing! Hence, no responses.

Secondly, we asked about the date for the next open meeting as many homeowners want to discuss this issue. No replies. Our last meeting was in April.

Can we force the Board to hold a meeting? Doubt it.

Luci

Luci - Here's what I found: Paragraph 2 states as you said, Corporations must be represented, but the Supreme Court allows these entities to be represented before the OAH by full-time employees and officers.
But I doubt any HOA officer would do this, being too unsure of their information, hence spending the members' funds on an attorney.

DO I NEED A LAWYER?

No one is required by the Office of Administrative Hearings to have a lawyer. Individuals may, of course, represent themselves. However, when a party wishes to be represented by another, the Supreme Court restricts that representation to licensed attorneys, with exceptions. (see generally Rule 31, Rules of the Supreme Court )

Corporations or other legal entities are not individuals and therefore must be represented. The Supreme Court allows these entities to be represented before the OAH by full-time employees and officers, subjects to certain requirements. (see Rule 31(a)(4)(K)) An example would be a contracting company in a Registrar of Contractors case who could chose to be represented by a properly authorized corporate officer or employee.

Certain exceptions also exist for agencies whose hearings are conducted by the OAH. (see for example Rule 31(a)(4)(L) , allowing anyone to represent a party in AHCCCS cases, as long as no fee is charged. )

The Office of Administrative Hearings may not give legal advice to you, although it will do everything it can to provide you with a fair and impartial hearing. It will also help you understand and follow the procedures to present your case.

In any proceeding in matters under Title 23, Chapter 2, Article 10 of the Arizona Revised Statutes, before any administrative law judge of the Industrial Commission of Arizona or review board of the Arizona Division of Occupational Safety and Health or any successor agency, a corporate employer may be represented by an officer or other duly authorized agent of the corporation who is not charging a fee for the representation.

Hi,

My husband and I spoke to our attorney and are willing to pay $200 to have a certified letter sent to the management company which includes reading the CC&R's, Bylaws and Arc Guidelines.

Actually, several neighbors have said they would contribute to our attorney fees.

What we want to accomplish is that the management company and Board desist in making decisions behind "closed doors". Our main worry is that the liability insurance will not pay when there is a legal issue, for example, he/she cannot sell their house because of inappropriate standards in the community. If the insurance does not pay, than the court costs and damages are divided among the homeowners - gulp! None of us want a lien against our houses. Of course, this is an extreme example, but all you need is a "sue happy" person to cause such a situation.

I believe all of you, whether in Arizona, California, etc., should be aware that the HOA is required to carry liability insurance on the Board. However, there are conditions where the insurance companies will not pay. Since I do not have a copy of our policy, I am only assuming that violating state laws may fall under that category.

I will keep you posted with new information as soon as we learn it.

Take care.

Luci

As an aside- after the judge hands down his decesion you have a right to petition the office for a rehearing. At that point the same judge that presided over your hearing and handed down the decesion is the one that reviews your appeal and decides whether you will get a re-hearing. A clear conflict of interest as far as I'm concerned. You can also appeal to Superior court.