DianeB15 (Arizona)
Posts: 29
Posts: 29
Posted:
Is it appropriate to restrict the discussion topics to only the agenda items in an open board meeting (HOA in Arizona)? Or do we need to allow questions/comments on other topics.
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Open Board Meeting
Started by DianeB15 • 31 replies • 1377 views
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GeorgeR8 (Arizona)
Posts: 182
Posts: 182
Posted:
I have discussion after each agenda item before the board votes.
After the agenda items are done I ask if anyone has anything else they would like to discuss.
After the agenda items are done I ask if anyone has anything else they would like to discuss.
JohnC46 (South Carolina)
Posts: 14,265
Posts: 14,265
Posted:
George
You may have such and I commend you but I believe the question might be what is required in AZ?
You may have such and I commend you but I believe the question might be what is required in AZ?
TimB4 (Tennessee)
Posts: 21,062
Posts: 21,062
Posted:
Do you need to allow?
That will depend on applicable statutes.
Should you allow?
Yes. On our agenda we title it open forum.
Diane, if you are not on the Board, I doubt there is anything you can do to make the change unless the statutes support you. If you are on the Board, you should simply ask what does it hurt to allow discussion outside of the agenda (providing it's Association business)?
That will depend on applicable statutes.
Should you allow?
Yes. On our agenda we title it open forum.
Diane, if you are not on the Board, I doubt there is anything you can do to make the change unless the statutes support you. If you are on the Board, you should simply ask what does it hurt to allow discussion outside of the agenda (providing it's Association business)?
DianeB15 (Arizona)
Posts: 29
Posts: 29
Posted:
Thank you. I am on the Board. The Board meeting was called to discuss a homeowner's response to a notice of violation. The homeowner involved has had multiple serious violations in the last year and is extremely unpopular with most of the neighborhood. To date, I've been able to keep the recent meetings orderly (Annual HOA meeting and a hearing) when many of the homeowners go off-topic or it becomes contentious. But, tempers are running hot and the situation is escalating into confrontations on the street. Basically, I want to keep this meeting as brief as possible.
SheliaH (Indiana)
Posts: 6,964
Posts: 6,964
Posted:
Personally, I'd stick to the agenda items - other issues can be brought up in the resident forum. You don't have to make a decision immediately on a resident forum item - usually the board will study the issue further and then discuss it at the next meeting (where it will be an agenda item). If it's something relatively minor, they can address it immediately.
As far as this specific homeowner is concerned, it may be best to keep that to some sort of appeals hearing. The homeowner can attend and speak his/her piece, but should be instructed to be professional - any name calling, threats, curses, etc., will not be permitted. If he/she ignores you, the meeting will end immediately. If the person has been disruptive during regular meetings, you may need to tell him/her the board will not discuss the situation at this time and if the person crunks out, ask him/her to leave (or call police if things get really hairy).
Actually, if the homeowner hasn't corrected the violation or refuses to, it may be time to hand the whole thing over to the association attorney. When we do this in our organization, the homeowner is told any further conversation or correspondence regarding the issue has to be referred to the attorney, not the board or the property manager.
As far as this specific homeowner is concerned, it may be best to keep that to some sort of appeals hearing. The homeowner can attend and speak his/her piece, but should be instructed to be professional - any name calling, threats, curses, etc., will not be permitted. If he/she ignores you, the meeting will end immediately. If the person has been disruptive during regular meetings, you may need to tell him/her the board will not discuss the situation at this time and if the person crunks out, ask him/her to leave (or call police if things get really hairy).
Actually, if the homeowner hasn't corrected the violation or refuses to, it may be time to hand the whole thing over to the association attorney. When we do this in our organization, the homeowner is told any further conversation or correspondence regarding the issue has to be referred to the attorney, not the board or the property manager.
If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
TimB4 (Tennessee)
Posts: 21,062
Posts: 21,062
Posted:
Diane,
There is nothing wrong with having a meeting for a specific issue.
We have done that in the past and will likely do that in the future.
Within those meetings, I wouldn't entertain any discussion outside of that issue. I would simply say that that is a topic for a different meeting and move forward.
There is nothing wrong with having a meeting for a specific issue.
We have done that in the past and will likely do that in the future.
Within those meetings, I wouldn't entertain any discussion outside of that issue. I would simply say that that is a topic for a different meeting and move forward.
DianeB15 (Arizona)
Posts: 29
Posts: 29
Posted:
Sheila,
Threat of ending the meeting is exactly how I've been able to keep control of previous meetings. The "violator" homeowner is actually very polite in meetings - it's some of the homeowners that she's enraged with her violations who are disruptive. I advise from the start that rude or offensive behavior won't be tolerated and that the meeting will be ended if outbursts continue. That approach has worked so far. In other meetings, I've opened up the floor for discussion at the end; however, with this one, I just want to keep it to a minimum.
Threat of ending the meeting is exactly how I've been able to keep control of previous meetings. The "violator" homeowner is actually very polite in meetings - it's some of the homeowners that she's enraged with her violations who are disruptive. I advise from the start that rude or offensive behavior won't be tolerated and that the meeting will be ended if outbursts continue. That approach has worked so far. In other meetings, I've opened up the floor for discussion at the end; however, with this one, I just want to keep it to a minimum.
DianeB15 (Arizona)
Posts: 29
Posts: 29
Posted:
Thanks Tim. That's what I intend to do. I appreciate your input. I'm new to actually running the meetings so am not always sure what is allowed. You've saved me research time!
Diane
Diane
TimB4 (Tennessee)
Posts: 21,062
Posts: 21,062
Posted:
Diane,
I will add that any meeting we have about a violation we take into executive session.
Then it's just the Board, witnesses (typically the Architectural Committee Chair) and the member.
We meet in open session.
Confirm quorum, approve previous minutes and adjourn to executive session where he address the issue.
We return from executive session to open session and announce the decision or take a vote (depending what is required). Then we move forward.
Expecting you're an HOA (vs. COA), AZ 33-1804. Open meetings; exceptions supports the same process in AZ.
I will add that any meeting we have about a violation we take into executive session.
Then it's just the Board, witnesses (typically the Architectural Committee Chair) and the member.
We meet in open session.
Confirm quorum, approve previous minutes and adjourn to executive session where he address the issue.
We return from executive session to open session and announce the decision or take a vote (depending what is required). Then we move forward.
Expecting you're an HOA (vs. COA), AZ 33-1804. Open meetings; exceptions supports the same process in AZ.
KerryL1 (California)
Posts: 14,550
Posts: 14,550
Posted:
As with Tim, our Board, as permitted in CA, has owner discipline hearings about violations in executive (closed) session. Does AZ require they be in open meetings???
I think you need to review your bylaws to see what you may do in executive session. If they are silent, I'm sure that AZ statutes can help you.
If you MUST have those meetings be open, it might be best to call a special meeting of the board and name this topic only. But, again, check your bylaws or AZ statutes for requirement for special meetings of the Board. There might be notice requirements, for instance.
Btw, in CA, open meetings must stick only to the posted agenda (4 days in advance). An open forum is required and at that time, Owners may bring up other topics. But the board can only place them on a future agenda or answer simple questions.
I think you need to review your bylaws to see what you may do in executive session. If they are silent, I'm sure that AZ statutes can help you.
If you MUST have those meetings be open, it might be best to call a special meeting of the board and name this topic only. But, again, check your bylaws or AZ statutes for requirement for special meetings of the Board. There might be notice requirements, for instance.
Btw, in CA, open meetings must stick only to the posted agenda (4 days in advance). An open forum is required and at that time, Owners may bring up other topics. But the board can only place them on a future agenda or answer simple questions.
DianeB15 (Arizona)
Posts: 29
Posts: 29
Posted:
Unfortunately, it is my understanding that all meetings must be open in Arizona, with some specific exceptions, such as matters related to legal action, or health related topics of Board members, etc... It's a very short list of exceptions. This will actually be our first open Board meeting as the previous Board members were not aware of the open meeting law....
DianeB15 (Arizona)
Posts: 29
Posts: 29
Posted:
LOL - I guess I shouldn't say unfortunately... It's meant to protect homeowners rights... I normally wouldn't mind meeting in open session - it's just this homeowner's actions bring out the worst in our normally calm neighborhood.
KerryL1 (California)
Posts: 14,550
Posts: 14,550
Posted:
Do you have someone who can interpret AZ statutes for you? Say, a property mgr? Or can you cite the statute that says Onwer discipline issues must be out in the open? No privacy protection in highly sensitive cases ?
We do have some good AZ posters who might check.
We do have some good AZ posters who might check.
DianeB15 (Arizona)
Posts: 29
Posts: 29
Posted:
Our HOA attorney advised us earlier this year that the meetings must be open, with about 5 exceptions including legal matters, etc. I'm comfortable with understanding when a meeting should be open or closed. I just wasn't sure if we could limit open discussion (public forum) after addressing the agenda items. Since this is a board meeting and due to the volatile situation, I've decided to keep discussion to agenda items only and then adjourn the meeting ASAP before things can go south. We have pending litigation on this same homeowner for a different violation so we are allowed to meet in closed session for that issue. With the additional new violations that will be discussed on Thursday, it's a lot of pressure to keep things orderly. Most homeowners (including some fellow Board members) can't seem to understand that each violation is a separate issue and that they can't blend them all into the same discussion. I had to caution board members to stop discussing the litigation issues at the recent HOA meeting.
AugustinD
Posts: 5,144
Posts: 5,144
Posted:
Quote:
Posted By DianeB15 on 10/17/2017 9:19 PM
Our HOA attorney advised us earlier this year that the meetings must be open, with about 5 exceptions including legal matters, etc. I'm comfortable with understanding when a meeting should be open or closed. I just wasn't sure if we could limit open discussion (public forum) after addressing the agenda items. Since this is a board meeting and due to the volatile situation, I've decided to keep discussion to agenda items only and then adjourn the meeting ASAP before things can go south. We have pending litigation on this same homeowner for a different violation so we are allowed to meet in closed session for that issue. With the additional new violations that will be discussed on Thursday, it's a lot of pressure to keep things orderly. Most homeowners (including some fellow Board members) can't seem to understand that each violation is a separate issue and that they can't blend them all into the same discussion. I had to caution board members to stop discussing the litigation issues at the recent HOA meeting.
Our HOA attorney advised us earlier this year that the meetings must be open, with about 5 exceptions including legal matters, etc. I'm comfortable with understanding when a meeting should be open or closed. I just wasn't sure if we could limit open discussion (public forum) after addressing the agenda items. Since this is a board meeting and due to the volatile situation, I've decided to keep discussion to agenda items only and then adjourn the meeting ASAP before things can go south. We have pending litigation on this same homeowner for a different violation so we are allowed to meet in closed session for that issue. With the additional new violations that will be discussed on Thursday, it's a lot of pressure to keep things orderly. Most homeowners (including some fellow Board members) can't seem to understand that each violation is a separate issue and that they can't blend them all into the same discussion. I had to caution board members to stop discussing the litigation issues at the recent HOA meeting.
The topic is an allegation of a member violation. The latter is a private matter, per the law from my reading. Boards should not put members on trial at an open meeting for the same reason. You have pending litigation with the same member on another matter. If a HOA attorney in any state insists this is the stuff of an open meeting, I would run from the attorney. This is HOA law 101.
AugustinD
Posts: 5,144
Posts: 5,144
Posted:
From Arizona statutes, https://www.azleg.gov/FormatDocument.asp?inDoc=/ars/33/01804.htm&Title=33&DocType=ARS :
"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:
.
.
.
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.
.
.
.
5. Discussion of a member's appeal of any violation cited or penalty imposed by the association except on request of the affected member that the meeting be held in an open session."
"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:
.
.
.
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.
.
.
.
5. Discussion of a member's appeal of any violation cited or penalty imposed by the association except on request of the affected member that the meeting be held in an open session."
KerryL1 (California)
Posts: 14,550
Posts: 14,550
Posted:
Glad you took the time to look this up, Augustine. I was shocked to imagine that personal information about a member could be presented for all Owners to see & hear!
We've had a couple of unfortunate accidental events --violations--that've happened where the Board Assessed the Owner for the cost of clean-up. The details would have been needlessly very embarrassing for one Owner. Ditto the other case, which involved a visiting relative who went off his meds and ran around nude in a (high rise) hallway. Similarly, our Board and others in CA would never discuss poor performance by a vendor's employee in front of Owners.
The number 3 that you cite seems to cover what CA HOAs, too, may discuss in executive session. I think most would argue that along with AZ, CA & FL do the most to promote transparency & openness. But intrusion of privacy?? Whoa.
Especially given the pending litigation, Diane, that Augie refers to, too, your Board must be very careful not to jeapordize that case.
We've had a couple of unfortunate accidental events --violations--that've happened where the Board Assessed the Owner for the cost of clean-up. The details would have been needlessly very embarrassing for one Owner. Ditto the other case, which involved a visiting relative who went off his meds and ran around nude in a (high rise) hallway. Similarly, our Board and others in CA would never discuss poor performance by a vendor's employee in front of Owners.
The number 3 that you cite seems to cover what CA HOAs, too, may discuss in executive session. I think most would argue that along with AZ, CA & FL do the most to promote transparency & openness. But intrusion of privacy?? Whoa.
Especially given the pending litigation, Diane, that Augie refers to, too, your Board must be very careful not to jeapordize that case.
AugustinD
Posts: 5,144
Posts: 5,144
Posted:
Quote:
Posted By KerryL1 on 10/18/2017 10:55 AM
I was shocked to imagine that personal information about a member could be presented for all Owners to see & hear!
I was shocked to imagine that personal information about a member could be presented for all Owners to see & hear!
My eyebrow sure went up as I read that this was being considered.
That's a good story you shared about the relative off-his-meds streaking in the hallway.
DianeB15 (Arizona)
Posts: 29
Posts: 29
Posted:
Now I'm 2nd guessing whether this should be an open meeting afterall. I'll add some specifics to get opinions. The accused homeowner is not disputing the violation (a large cargo container that is in the process of being converted to a guest house.) We have ordered her to remove it from the property. She is asking for a time extension to get into compliance. Our CC&Rs do not allow any type of manufactured home so there is no way for her to achieve compliance. Further our County does not allow shipping containers of this kind in our SR zone. The homeowner has not applied for any permits or other governmental approvals. All she could do is apply for a variance from the county (which she hasn't to date) - there is no precedent for our county granting a variance on a cargo/shipping container in a SR zone and the process takes about a year for a decision. She has rec'd an order from the County to remove the shipping container from her property. She has continued with the work on the container in spite of the letter of violation and the county's order for removal. We are planning to discuss her request for time extension and then vote.
We have pending litigation for this same owner involving short term rentals on her property through an online website.
We have pending litigation for this same owner involving short term rentals on her property through an online website.
DianeB15 (Arizona)
Posts: 29
Posts: 29
Posted:
Now I'm 2nd guessing whether this should be an open meeting afterall. I'll add some specifics to get opinions. The accused homeowner is not disputing the violation (a large cargo container that is in the process of being converted to a guest house.) We have ordered her to remove it from the property. She is asking for a time extension to get into compliance. Our CC&Rs do not allow any type of manufactured home so there is no way for her to achieve compliance. Further our County does not allow shipping containers of this kind in our SR zone. The homeowner has not applied for any permits or other governmental approvals. All she could do is apply for a variance from the county (which she hasn't to date) - there is no precedent for our county granting a variance on a cargo/shipping container in a SR zone and the process takes about a year for a decision. She has rec'd an order from the County to remove the shipping container from her property. She has continued with the work on the container in spite of the letter of violation and the county's order for removal. We are planning to discuss her request for time extension and then vote.
We have pending litigation for this same owner involving short term rentals on her property through an online website.
We have pending litigation for this same owner involving short term rentals on her property through an online website.
TimB4 (Tennessee)
Posts: 21,062
Posts: 21,062
Posted:
Quote:
Posted By DianeB15 on 10/18/2017 2:12 PM
Now I'm 2nd guessing whether this should be an open meeting afterall.
Now I'm 2nd guessing whether this should be an open meeting afterall.
The issue should start out in an open meeting.
The executive session, closed meeting, would be entered into from the open meeting.
When the executive session is finished, you should return to the open meeting to vote or identify the solution (in this case, the time extension).
To be honest, we work it on a case by case basis. If there are visitors, we offer to take the issue into executive session (explaining that this is what we normally do for violations but the choice is the members). If there are no visitors (i.e. nobody else but the board and violator, we just continue with the meeting.
Tim
DianeB15 (Arizona)
Posts: 29
Posts: 29
Posted:
This homeowner has caused a lot of grief; however, I personally have no desire to embarrass her or punish her. She may not even be at the meeting. I'm consulting our attorney to determine what portions can be held in closed session.
TimB4 (Tennessee)
Posts: 21,062
Posts: 21,062
Posted:
If you feel you need legal advice and are willing to pay the money for it, go ahead.
I provided a link to the actual statute.
Personally, I thought it was fairly clear.
I provided a link to the actual statute.
Personally, I thought it was fairly clear.
DianeB15 (Arizona)
Posts: 29
Posts: 29
Posted:
Thanks Tim. I am familiar with the statute and have read it many times over the last few months. My interpretation of holding the meeting in open session was correct per our attorney. I really wanted a reason to hold part of the meeting in closed session; however, our attorney just advised me it doesn't fit the criteria as it's not an appeal or in litigation, etc.
KerryL1 (California)
Posts: 14,550
Posts: 14,550
Posted:
Now I've really confused myself. Why is an extension even on the agenda when neither your county or your HOA will permit this on your HOA's premises?
It seems to me that when she requested the "extension" from the Board, or you?, she simply should have been told there's nothing to extend. Or am I missing something???
#3 does not require you be in litigation, just that it have to do with "personal information" about her. At present the personal info about her is her refusal to remove the container, isn't it? According to what Tim provided and Augie referred to, too, Even IF the county would permit her container, your HOA covenants do not, so there it is.
It seems to me that when she requested the "extension" from the Board, or you?, she simply should have been told there's nothing to extend. Or am I missing something???
#3 does not require you be in litigation, just that it have to do with "personal information" about her. At present the personal info about her is her refusal to remove the container, isn't it? According to what Tim provided and Augie referred to, too, Even IF the county would permit her container, your HOA covenants do not, so there it is.
DianeB15 (Arizona)
Posts: 29
Posts: 29
Posted:
I had a response letter prepared with a denial of the extension. (I'm handling the complaint for the Board - I am not an officer, just a Board member). The Secretary of the Board insisted we needed the meeting to discuss/vote on the extension. I can't imagine an extension being granted; however, I didn't want to argue the need for the meeting either. It would be ideal if the County takes care of this cargo container for us; however, we are pursuing it as a HOA violation separately in case the county's case gets bogged down and delayed in the appeal process. This homeowner has a history of ignoring all demands and notices which is why we have pending litigation on the other matter. (First time our HOA has ever had to hire a litigation attorney to gain compliance!)
Our HOAS attorney is very clear that the criteria for a closed meeting has not been met. I don't think her refusal to remove the container could qualify as personal information.
To add further pressure, one of the homeowners with an interest in the situation (lives beside the accused homeowner) is an attorney and she keeps a close eye on the actions of the Board. She has questioned other closed meetings from last year and it was determined that the Board actually should have been in open session rather than closed. Like I said, I've read the statutes many times and consulted with our attorney for other meetings so I was fairly certain that this meeting would have to be in open rather than closed session. I was just hoping I was wrong this time...
Diane
Our HOAS attorney is very clear that the criteria for a closed meeting has not been met. I don't think her refusal to remove the container could qualify as personal information.
To add further pressure, one of the homeowners with an interest in the situation (lives beside the accused homeowner) is an attorney and she keeps a close eye on the actions of the Board. She has questioned other closed meetings from last year and it was determined that the Board actually should have been in open session rather than closed. Like I said, I've read the statutes many times and consulted with our attorney for other meetings so I was fairly certain that this meeting would have to be in open rather than closed session. I was just hoping I was wrong this time...
Diane
KerryL1 (California)
Posts: 14,550
Posts: 14,550
Posted:
So it sounds like your Board permits any item to be on an agenda even when it doesn't make sense? Boards create agendas unless it votes that only the president can, or some other method.
If this non-issue is to be discussed in a special meeting, who called the meeting? The secretary? Don't your Bylaws require the president or any two other directors call special meetings?
Honestly, based on what you've written, Diane, there is NO THING to extend. So it should not even be on the agenda. That it is, and the meeting must be open (no private personal information), there just will be more hard feelings among those upset with her previous violations.
Do you think, and this would take the attorney's written opinion, your HOA can have the container removed and charge her for it? I think you're right--it's gong to take the county too long to act.
If this non-issue is to be discussed in a special meeting, who called the meeting? The secretary? Don't your Bylaws require the president or any two other directors call special meetings?
Honestly, based on what you've written, Diane, there is NO THING to extend. So it should not even be on the agenda. That it is, and the meeting must be open (no private personal information), there just will be more hard feelings among those upset with her previous violations.
Do you think, and this would take the attorney's written opinion, your HOA can have the container removed and charge her for it? I think you're right--it's gong to take the county too long to act.
DianeB15 (Arizona)
Posts: 29
Posts: 29
Posted:
I don't disagree with anything you've said, KerryL1. I did question the need but I have bigger issues to deal with and simply advised that the meeting would need to be open. I believe it was scheduled appropriately and with good intent. I don't mind the meeting if it gives me the decisions that I need to respond.
DianeB15 (Arizona)
Posts: 29
Posts: 29
Posted:
Removal is one of the options we're considering.
KerryL1 (California)
Posts: 14,550
Posts: 14,550
Posted:
You're right, I think, to keep your eyes on bigger topics. You, Diane, seem to be a very diligent director and I hope the rest of the Board appreciates you.
KerryL1 (California)
Posts: 14,550
Posts: 14,550
Posted:
You're right, I think, to keep your eyes on bigger topics. You, Diane, seem to be a very diligent director and I hope the rest of the Board appreciates you.
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