Board of Directors Rights

I am a Member at Large in an HOA in Arizona. We have 5 members on our BOD. I am a dissenting voice on a number of topis. Because of this I am not receiving information on some important topics being discussed and presented at Board meetings. Most of these discussion take place in emails between board members. I cannot find a specific law or opinion on this matter. Our Bylaws and the Arizona State Statutes address members rights to information, but I cannot find anything for Boards of Directors rights?

In theory I would suspect that you have the same rights as anyone else on the board, at least you would in our association. I believe that email is being abused a lot in the running of associations now. In effect, the board is meeting via email, and in your case, excluding you from that meeting. If your state has open meeting laws they are certainly circumventing the whole spirit of these laws by this practice. The odd thing, of course, is how can you get in on these email meetings? They can always say that their emails are just personal emails between friends. I'm about ready to believe that no board business should be done via email as the abuses for this are rampant. You could hardly be left out of anything if all business was done at the board meeting.

Larry, if you have proof of your board's conducting business in violation of the open meeting law, you can file a complaint with the Arizona Office of Administrative Hearings. http://www.azoah.com/ .
I'm not sure why they would flirt with the open meeting law and bother to keep you out of the loop since they apparently have enough votes to offset your opposition. You need to be sure your vote is recorded by name in the meeting minutes. Harold

Ninety-five plus percent of the membership doesn't care how the decisions are made as long as they are made. Regardless of what the law says, good for an HOA that has found a way to get the work done with as little effort as possible without doing harm. Just because the legislature is bringing up the rear when it comes to dealing with the use of technology doesn't mean its not a viable option for communication among board members.

If a minority someone wants to rock the boat and make everyone work harder to get to the same end than I suppose that's their perogative. But ya know, life is tough enough without spreading grief.

Unfortunately, the Attorney General of AZ has stated an opinion that the "Open Meeting Laws" do not apply to HOA's. However, he does recommend thar HOA's follow the spirit of the Open Meeting Law. Other than hiring an attorney, I see no way of forcing the other Directors to give me all info discussed.

Dear Larry I am in a simular situation here in California. I have several residents who back me and I am trying to find out how to get acess to our common grounds property including a bolted shut maail slot at office? If you have any suggestions could you please pass them on? If I get any I will gladly send information to you. At this point we are seeking legal help. I recently filed a complaint and got reprimanded.

JohnC:

Wait until dues are raised without notifying the membership or another controversial issue passes. Yes, 95% of people don't care until it affects their wallet, and at that point you better watch out because that 95% of people will be looking for blood. As someone who was on a board I went by the book because I am not in favor or getting sued or going to jail.

Terry Goddard
Attorney General
Office of the Attorney General
State of Arizona
1275 West Washington, Phoenix, Arizona 85007-2926
HOMEOWNER ASSOCIATIONS AND THE OPEN MEETING LAW

The Attorney General's Open Meeting Law Enforcement Team (OMLET) receives a number of
calls each year alleging that homeowner associations have violated Arizona's Open Meeting Law (ARS.
§§ 38-431 through -431.09). Because the Open Meeting Law does not apply to homeowner associations,
OMLET created this quick information guide to help identify the laws that currently do apply to meetings
of homeowner associations.
Under the Open Meeting law, "[a]ll meetings of any public body shall be public meetings and all
persons so desiring shall be permitted to attend and listen to the deliberations and proceedings." A.R.S. §
38-431.01(A). Arizona law defines a "public body" as:
the legislature, all boards and commissions of the state or political subdivisions, all
multi-member governing bodies of departments, agencies, institutions and
instrumentalities of the state or political subdivisions, including without limitation all
corporations and other instrumentalities whose boards of directors are appointed or
elected by the state or political subdivision. Public body includes all quasi-judicial
bodies and all standing, special or advisory committees or subcommittees of, or
appointed by, such public body.

ARS. § 38-431(6). A homeowner association does not satisfy the definition of "public body" because it is
not a political subdivision, is neither a multi-member governing body nor an instrumentality of a political
subdivision, and is neither a corporation nor an instrumentality whose board of directors is elected by a
political subdivision. See Ariz. Att'y Gen. Op. 188-055. Because a homeowner association does not meet
the definition of a "public body" in ARS. § 38-431(6), it is not subject to the Open Meeting Law. Id.
However, in 1994 the Arizona Legislature enacted ARS. § 33-1804 and required that "all
meetings of the [homeowner] association and board of directors are open to all members of the
association" except for any portions of a meeting relating to four exempted topics (employment, legal
advice, litigation, and enforcement matters). Also, the homeowner association must supply notice of its
meetings to all members, unless the articles of incorporation and bylaws provide otherwise. See AR.S. §
33-1804(B). The Attorney General, County Attorneys, and other public lawyers are not authorized to
enforce the laws relating to homeowner associations.

A homeowner association can have great influence in community affairs, and because its
decisions affect its members, its members should always be invited to attend and observe the
association’s deliberations. Thus, although not subject to Arizona's Open Meeting Law, homeowner
associations are strongly encouraged to always conduct public meetings which are properly noticed.

See
Ariz. Att'y Gen. Op. I97-012.
Updated 9/2006
424484

Yes I think you are right.

I think meetings are open to members, but not the general public. We do have an Adminisrtative Court in AZ that will enforce cases such as this. I beleive it costs $550.

Another issue I have is our Board does not feel that committee meetings need to be open meeting also. For example, we have just started an ACC Approval Committee and they want to do all approvals by email only. Thus eliminating anyone from attending meetings.

I'm glad we are in agreement on what that law says.

Thanks Harold for telling me how you came up with these opinions. They are fascinating and hopefully VA. will have them online also. I do know the part of the code that applies to HOAs and follow the legislature also when they are meeting, so have that part of it covered. You would think the state would worry more about informing both boards and homeowners about the law, but they don't. In Virginia there is the non-stock corporation act which covers HOAs (if they are incorporated) also, then there is some goofy thing that they have that puts us under control of the realty board. That costs us $25/year and for that there is a liaison and a web page with an out of date version of the law on it. Impressive. They did figure out that they should start spending the money though and gave out grants. Joseph's website was under that, as I understand it, but then Virginia said goodbye, we will take care of it, and now cobwebs are growing on it. I had poked around and found some of the stuff that was done with the grants just out of interest, but doubt if many people have. What a system!

Atually John, HB2824 which made it possible to resolve disputes between homeowners and HOAs, became law on Sept 21, 2006. Here is a copy of the memo from the Dept of Fire, Building and Life Safety detailing this new law. I'm not sure what happened in 1996 that you are referring to. Harold

JANET NAPOLITANO ROBERT BARGER
Governor Director
DEPARTMENT OF FIRE, BUILDING AND LIFE SAFETY
1110 WEST WASHINGTON, SUITE 100 PIMA COUNTY
PHOENIX, ARIZONA 85007 400 WEST CONGRESS, SUITE 121
(602) 364-1003 TUCSON, ARIZONA 85701
(602) 364-1052 FAX (520) 628-6920
(520) 628-6930 FAX
OFFICE OF ADMINISTRATION * OFFICE OF MANUFACTURED HOUSING * OFFICE OF STATE FIRE MARSHAL
September 1, 2006
In 2006, the Arizona 47th Legislature passed legislation in the form of HB2824 that provides the people of Arizona a venue to homeowners and condominium and planned community associations (HOA) to resolving disputes. These administrative procedures do not limit the rights of the parties to pursue matters in the legal system, but provides an alternative. This legislation becomes law on September 21, 2006.
Until the legislation becomes law, we cannot process any applications because we do not have the legal ability to do so. Thus, any forms or applications received before September 21, 2006, will not be processed until then.
There are a few points of the legislation that need to be made perfectly clear.
• The $550 Filing Fees are NON-Refundable, by law.
• Only Homeowner can file a complaint; renters or non-owners cannot.
• The complaint must be against the condominium or planned community association. Not directors, representatives, other homeowners, management companies or such.
Remember this is new to everyone, so we will try to make the implementation of the legislation as smooth as possible, but patience may be required while we work through any problems. Thanks for your understanding.
Sincerely,
Robert Barger, Director
Department of Fire, Building and Life Safety

33-1804. Open meetings; exceptions

A. 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. The board may place reasonable time restrictions on those persons speaking during the meeting but shall permit a member or member's designated representative to speak before the board takes formal action on an item under discussion in addition to any other opportunities to speak. The board shall provide for a reasonable number of persons to speak on each side of an issue. Any portion of a meeting may be closed only if that closed portion of the meeting is limited to consideration of one or more of the following:

1. Legal advice from an attorney for the board or the association. On final resolution of any matter for which the board received legal advice or that concerned pending or contemplated litigation, the board may disclose information about that matter in an open meeting except for matters that are required to remain confidential by the terms of a settlement agreement or judgment.

2. Pending or contemplated litigation.

3. Personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association, including records of the association directly related to the personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association.

4. Matters relating to the job performance of, compensation of, health records of or specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association.

B. Notwithstanding any provision in the community documents, all meetings of the association and the board shall be held in this state. A meeting of the association shall be held at least once each year. Special meetings of the association may be called by the president, by a majority of the board of directors or by members having at least twenty-five per cent, or any lower percentage specified in the bylaws, of the votes in the association. Unless otherwise provided in the articles or bylaws of the association, not fewer than ten nor more than fifty days in advance of any meeting of the members the secretary shall cause notice to be hand-delivered or sent prepaid by United States mail to the mailing address for each lot, parcel or unit owner or to any other mailing address designated in writing by a member. The notice shall state the time and place of the meeting. A notice of any special meeting of the members shall also state the purpose for which the meeting is called, including the general nature of any proposed amendment to the declaration or bylaws, changes in assessments that require approval of the members and any proposal to remove a director or an officer. The failure of any member to receive actual notice of a meeting of the members does not affect the validity of any action taken at that meeting.

C. Unless otherwise provided in the articles or bylaws of the association, for meetings of the board of directors that are held after the termination of declarant control of the association, notice to members of meetings of the board of directors shall be given at least forty-eight hours in advance of the meeting by newsletter, conspicuous posting or any other reasonable means as determined by the board of directors. An affidavit of notice by an officer of the corporation is prima facie evidence that notice was given as prescribed by this section. Notice to members of meetings of the board of directors is not required if emergency circumstances require action by the board before notice can be given. Any notice of a board meeting shall state the time and place of the meeting. The failure of any member to receive actual notice of a meeting of the board of directors does not affect the validity of any action taken at that meeting.

Are board discussions on a message board such as this, where all Association members can read whats being discussed allowable? It seems the spirit of the law would be that the discussion be public.

Seems like you have it backwards to me. Any correspondance is considered a meeting is more than a quorum of Board members is involved. Email is not permitted as a means of "discussion", but I believe its because Association members do not have access to that conversation. Any communications that includes a majority of Board members that is "done in private" is a violation. Electronic communications is murky. However the spirit of the open meeting laws is that the discussions be held in public, that is, that association members can witness the pros and cons and decision-making process. An open forum allows for that. In fact, if you allow Association members to ask questions about the discussions, then you've logically included all of the requirements of a physical meeting.

Lets face it, its impractical for Boards to only discuss things at physical meetings. There are too many issues to discuss.

What is the enforcement mechanism for Unit Owners who have a board that conducts all of their business in private?

he said that 10 years ago.

Carol is on a mission.