Open Meeting Laws - Arizona

Our management company is trying to interpret law (she is not a lawyer) pertaining to open meetings. She is not allowing the board to communicate between ourselves on topics currently to be added to our next meeting agenda, to discuss topics that are currently open on the agenda. We are not voting on anything - simply exchanging information. We are currently working with an attorney regarding annexation -- and the board president is the "go to" person for this. He wishes to provide information to the other 3 board members provided by counsel, to inquire if we have any other question for counsel prior to our next meeting.

I think she is wrong as we are simply exchange information - not voting.

Opinions?

Thoughs?

First, I agree with the manager that you all are not supposed to be emailing or phoning each other about anything that concerns the association's business that qualifies as an "open meeting" topic. Arizona statutes list those topics that may be discussed in an executive session.

Second, with regard to the topic of annexation: Would an owners' vote likely be involved at some point? I tend to think that discussion of annexation should occur at a special meeting of the owners, not the board, and quite possibly with the HOA attorney present, to provide information. Do say more about what you mean by "annexation" here. Do you mean annexation into another HOA?

Third, your board, not the MC, is legally in charge. In general, if the president wants to get information to directors prior to a meeting with counsel, why can't the president just email it directly to them, without the manager's involvement? If it's a one-way communication, with no discussion, that's fine.

Fourth, do you know how to look up the statute sections pertaining to open meetings? Do you need a link? Do you know that google will locate the Arizona statutes with a search of just a few keywords?

Theresa

Rules and regulations vary from state to state. As an example our BOD Members can discuss anything we wish to discuss be it vie Email, or phone, or in person. We can even vote those ways if the vote in unanimous and documented in the next BOD Meeting Minutes. This is rare but it is SC.

I agree 100%

I will:

Understanding HOA Meeting Laws in Arizona
There are so many rules to follow when operating and managing a homeowners association. While breaking a small tenet may only result in a slap on the wrist or a terse letter, not complying with the long-established laws that dictate exactly how an HOA should function, particularly when it comes to meetings, can yield unwanted outcomes.

What are HOA meeting laws?
Also called open meeting laws, HOA meeting laws in Arizona exist to prevent any sort of secretive decision making or exclusion. Open meeting laws outline the rights of the people in the HOA as it relates to discussing how all matters are handled.

Examples of current HOA meeting laws in Arizona include:

All homeowners associations must host a meeting once a year within the state.
At least 48 hours of advance notice must be given about the time, date and location of an HOA meeting.
A person may send a designate to represent them at the meeting, but this must be noted in writing.
A meeting agenda must be made available to all HOA members.
An emergency HOA meeting is only allowed if an issue has arisen that must be addressed before the next regularly-scheduled meeting.
Email voting and open meeting laws
In recent years, email voting has become a popular method of making decisions for HOA directors. Making a decision via email is protected under ARS 10-3821 of the Non-profit Corporation Act. However, judges across the country have deemed that these digital decision-making processes do, in fact, constitute meetings.

Two particular statutes, ARS 33-1248 and 1804, make the case that email decisions violate open meeting laws for the following reasons:

The state’s law trumps any association’s governing documents, including those that specify using email voting for decision making.
“All meetings” are required to be open except for express exemptions such as attorney-client, personal information, violations, etc., and emails do not fall into this “open” definition.
Open meeting laws apply to any casual conversations where decisions could be reached when a quorum of the board is present, such as an email chain.
Many law experts have examined how email communication and voting applies to open meeting laws. Ultimately, law experts cannot conclude for sure whether email communication violates open meeting laws. Some lower courts hold that they do, especially when the board makes a decision in those emails. But other lower courts hold that they do not. Until the Court of Appeals decides the issue, it will continue to be hotly contested.

You may have read this blog post and become concerned about how your homeowners association is handling related matters. Rather than conducting business as usual, consult a law firm with years of experience in HOA meeting laws in Arizona. The Goodman Law Group specializes in Arizona HOA law and has done so for the last decade. Rather than trying to understand every area of the law as many other firms attempt to do, Goodman Law Group is dedicated to being the statewide expert on homeowners association laws. Contact us now to learn how we can transform the way your HOA handles legal matters.

I am a paralegal and, yes, I know how to look up statutes.

Annexation has been voted on by owners to move forward with the necessary steps to be taken with the City, thus we are simply putting information together for our next board meeting, which is rarely attended by anyone other than board members, and trying to keep our legal costs down by getting all the questions answered in one email or phone call.

Yes, our manager came from California.

I've been on this board for nearly 20 years, and NO management company has ever told us we can't communicate with each other by email, as long as we don't vote on anything.

BTW the Arizona statute regarding HOA board communications is nearly 30 years old and probably needs to be revised due to the state of technology and the growth of HOAs in the statem

Many states have revised their HOA statutes in recent years, including three of the larger HOA states (Florida, Texas and California). All three continue to require board meetings to be open to all owners, except when the board discusses certain privileged topics, as listed in the states' respective statutes.

The goal of open meeting requirements is transparency to owners/shareholders. This includes being able to observe the decision-making process and the back-and-forth that goes into the proverbial sausage-making of board decisions. I do not think technological advances change this goal.

Importantly in Arizona, statutes require that board meetings hold an open forum segment. The board "shall permit a member or a member’s designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item 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." If owners cannot hear all that went into directors' deliberations, then they do not have a chance to give all input that might be relevant.

I hear you that meetings are poorly attended. But the subject line is "Open Meeting Laws - Arizona." You asked for opinions about whether the manager is right, with regard to two issues. On the first issue: The manager is entirely right that the law asserts that those topics "currently open on the agenda" (and which are not privileged) should be discussed not in an email meeting (where owners cannot observe and comment), but in a bona fide, properly noticed, meeting that is open to all owners (by zoom or in a physical meeting place where owners can come in person).

Oh, I was gonna ask John for the author, date, publication info, not the entire article. I wrote it incorrectly. JoehC did sorta cherrypick form it

I did poke around a little and found statue 33-1894 E. I didn't notice though, that it's 30 years old???!!!

"4. Any quorum of the board of directors that meets informally to discuss association business, including workshops, shall comply with the open meeting and notice provisions of this section without regard to whether the board votes or takes any action on any matter at that informal meeting."

"Discussions" about board business--whether or not they attend-- must be held at at properly noticed open meeting in AZ. As I tried to show above, it's not difficult to cite an agenda item to discuss & deliberate it in front of Owners NO MATTER how many attend. The fascinating the a bout AZ is that Owners can be a part of the decision-maiking process. That an item was discussed is implied when Owners who read the meeting minutes can see what happens to every agenda item.

I think ElleN's note about one-way communication (providing information) is fine outside of open meetings. It's the back & forth discussion (or even deliberation) that is not fine.

I see Max also thinks that "sharing information" and "suggestions" mean the same thing, but they don't; the latter initiates a "discussion" or tries to persuade. Th first board Owners voted out here, long ago clearly held their discussions in executive session or outside of duly noticed meetings. The "open" board meeting merely was the board rubber-stamping importnt matters and having stupid debates about trivia.

The Arizona Planned Communities Act (meaning Arizona's HOA statute) has been amended many times. Last month alone the Arizona legislature passed yet another amendment to it. Asserting that the statute is 30 years old is not accurate.

Per casetext.com and in particular, the "Open Meetings; Exceptions" section of the Act was last amended in 2017. The amendment imposed additional restrictions on boards. These restrictions support transparency and owners' access to board deliberations. Another amendment to this section occurred in 2012.

Another Arizona law firm's commentary to ponder, on email communications among HOA board members, from 2012:

House Bill 2609 (ARS 33-1804 and * ARS 33-1248) was passed into law by the Arizona legislature. The new language leads to questions about whether director to director, director to committee, or director to manager emails are considered association discussions subject to the open meeting and notice provisions. Admittedly, the language of the law is ambiguous and open to interpretation but many attorneys in the industry believe it means that any discussions between directors (sufficient to establish quorum) about “open meeting topics” may not be discussed in email communications but should be reserved for discussion in the next open meeting. Of course, email communications between directors about confidential items are not subject to open meeting laws but it is this attorney’s opinion that discussions about association business be reserved for either a regular/emergency executive meeting (if the topic is time sensitive/confidential) or the next open meeting (if the topic is does not fall under one of the exemptions provided for in ARS 33-1804(A)(1-5) or *ARS 33-1248(A)(1-5).

This leads us to the next question…are emails “association records” governed by ARS 33-1805's and *ARS 33-1258's disclosure requirements? In order to say “yes, they are,” one would have to conclude that emails are “records” of the “association.” The legal definition of “records” may be defined to include emails under a liberal interpretation. A strict interpretation may not be so supportive. Until the higher courts rule on this issue we are left with arguments for or against their disclosure. Some courts may require disclosure if the issue were to be litigated and others may not.

Unfortunately or fortunately, the law is not black and white until an issue is decided by the higher courts.

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