AZ Bill - SB1019

Mary - Appreciate the information on this, as I am very interested in it's passing. Are you knowledgable about emailing between board members in the state of AZ? What I am most interested to learn is can board members discuss HOA business, make decisions over email? If so, are these emails to be made part of the board's meeting notes, and part of the permanent record for homeowners to have access to? Hope you or someone else out there with AZ statue knowledge can be of assistance, as our Bylaws are silent on this matter.
Thanks much!
/lisa

By the way.. I did go to look up SB 1019 but it came back that there was no such bill????

Hi Lisa,

The current open meeting law does not address email communications. However, if SB1019 passes there is a section which states: "a quorum of the BOD shall not meet, conduct business or make any decisions by means of electronic mail commnications."

I'm hopeful the bill will pass but it must first go through the House Rules committee then to the House floor for all 60 Rep. to vote. We have no opposition so there should be no problem. Until this happens, a BOD may communicate as they wish thru email.

Thanks RobertG... very informative

Email is still a gray area, but I think everyone in Arizona (expect those who do this) state that making decisions via email is definitely against the open meeting law allowing homeowners the ability to speak before a vote. This law just makes it more clear.

Lisa,

Until SB1019 is law, boards can conduct business by email communication as there is no law preventing it. Whether they want to make those messages a part of the permanent record is up to them. When there is no law addressing a particular issue the board has license to do as they choose. Board transparancy of actions was one of the main reasons for SB1019. Your board's actions regarding email communications was a main reason for including that in the bill. After the Gov. signs the bill into law it will become effective in Sep. At that time you can present your board Pres. with a copy of the amended law and they will have to change their way of doing business.

Harold - My board typically makes decisions in executive meetings or over email. The AZ Statue you make reference to, does it so state that this is not allowable? They also do not provide an agenda prior to the meeting to the board members, nor to the community. Is there currently a statue that states they must provide this to the board and community?

Mary - How will I know when SB1019 passes?

Many thanks to you both, your input is invaluable to me and my community. /lisa

Lisa - here are Arizona Revised Statutes now in effect for planned communities. http://www.azleg.state.az.us/ArizonaRevisedStatutes.asp?Title=33
scroll down to chapter 9 for condominiums and chapter 16 for planned communities. print out and study those statutes, and from what you've said, you should find several statutes that your board is avoiding.
Does your HOA have a management company? They SHOULD know the law and be advising your board that they are in violation.

Harold & Robert,

Frankly, I've never heard the open meeting statute interpreted this way b/4! Yes, the board must allow a member to make a statement before a decision is reached; however, that doesn't mean they cannot make a decision w/o a member's opinion stated. Members are not obligated to make their opinions known b/4 decisions are made. Email communications are not addressed in current statute, therefore there is nothing that precludes the board from operating by this means. This is why email communications was included in SB1019. If it was already law there would have been no need to include it in the bill! Also there is no prohibition for making decisions in closed (executive) session which is why that was also addressed in SB1019.

Robert,

The amendments for SB1019 shown on the website were not all attached to the bill. For the current version of the bill you must refer to the Senate engrossed version which will include all amendments made in the Senate. However, none of these amendments address petitions which you made mention of in your previous message.

Yes I referenced the public body open meeting law just as a point of reference. I did not say it applied to HOAs. I've been involved with HOA issues for well over 10years and am very familar with what statutes apply to HOAs and what statutes don't.

Please explain your statement: "This also includes actions taken by "Action by Consent" which are in many HOAs in this area." What includes "Action by Consent" and what is in many HOAs in your area??? By "Action by Consent", I presume you mean "action without meeting"?

Harold,

You forgot to reference the Title 10 statutes which also apply to HOAs that are non-profit corps. They can be found by clicking on Title 10 then scrolling down to Chapt 24 through Chapt 40. Here you will find 10-3821 - action taken without a meeting.

Lisa,

Contrary to Robert & Harold's beliefs, you board is not violating any law by communicating and making decisions through email communications. If you took this complaint to the OAH you would not win, believe me. The current statute - ARS33-1258 (condos) and 33-1804 (planned communities) do not address email communications. They also do not require an agenda be provided b/4 a board meeting. This is also address in SB1019.

You can check the progress of SB1019 by going to the Legislature's website. Enter the bill number in the upper right hand corner - SB1019 then click on "bill status".

FYI. . .

A bill becomes law 90 days after the legislature adjourns unless it was an emergency or Prop 108 legislation in which case it takes effect immediately. The reason for the 90-day "grace" period is so opponents of a newly signed bill have enough time to gather signatures for a ballot measure at the next general election. If enough signatures are gathered the new law is put on hold until the voters decide if it should or should not become law.

Harold,

I know full well how the statute reads and I understand it quite well. Email communication is not a meeting; it's more like writing a letter. Only if it were a quorum of the board participating should it be considered a meeting. (I notice you don't even make that distinction in your interpretation.) Only problem is that current law doesn't address email communications so it's a moot point. The key phrase here, Harold, is CURRENT LAW!!!! I can't help but add that you're doing what so many errant boards do -- putting your own spin on the law. Only difference is, to your credit, you're doing it in favor of the members.

Guess we'll just have to agree to disagree on this one, Harold -- even though I know I'm right and you're wrong. LOL Please take that as a joke!!

Robert,

No, I'm not a board member at this time; however, if I were I would not use, nor condone the use of, email communications. Never did I say this should be used in place of conducting business at an open meeting. I only said it is not currently addressed in statute. I am aware that some HOA attorneys are advising their clients not to use this method. During our stakeholder meeting for SB1019, an HOA attorney expressed her delight that email communications and emergency meetings were included in the bill. She stated she has been advising her clients on both and was glad that it would now be LAW -- meaning it isn't presently. Attorneys advise their boards to do many things that are not covered by existing law. If use of email were to be challenged in court it may or may not be ruled in favor of not using it. However, if it were a part of existing law there would be no guess about the outcome. As I said b/4, if it was definitely covered by the existing open meeting law I wouldn't have felt the need to include it in SB1019.

I also find it interesting that you include emergency meetings and I guess it's OK for you to also put your spin on how they are to be conducted. Emergency meetings are also not covered by existing law, including Title 10. You want to take exception to my interpretation to the law but yours and Harold's are OK???

You stated: "It doesn't matter what the method of making the decision, talking, writing a letter, email, telegraph, telephone... the law clearly states homeowners shall have the right to speak about it." The law clearly says at a meeting, and for a meeting to take place a quorum of the board must be present, which both you and Harold conveniently forget to state when making your argument about email communications. Writing a letter is not holding a meeting. Making a telephone call is not holding a meeting unless it were a telephone conference and that too is covered in the bill and not by existing law. Then you further stated: "If you believe you can use email, the why have any meetings, just do everything by email and the homeowners would never have any input whatsoever." This is precisely what many boards are doing and this is precisely why the open meeting law has been amended by SB1019 to include email communications.

You say my comments are no longer of importance because I'm "stuck" on wanting to have my view accepted. Well I could say the same thing about you! Sadly, I was mistaken in thinking I could have a friendly discussion with you. It's very apparant you are not open to anyone else's opinion.

Mary, please look at http://www.mulcahylawfirm.com/news/Newsletter%20January%202008%20%20Website.pdf

Robert,

Thx for the website. I've saved the open meeting law info. Her closing statement: "Many in the community association industry predict that if boards use e-mail to contradict open meeting laws, the AZ legislature will respond by placing limitations on the use of e-mail by board members. Therefore, it is important to note that overuse and misuse of e-mail may result in legislative limits on the use of e-mail by association board members and potential liability for violations of open meeting laws." This is the very reason SB1019 has been proposed.

I hope you read the response I just posted to Harold and can better understand the point I was trying to make -- it's not spelled out in State law so boards will not think it's against the law. Guess I didn't do such a good job of making myself clear. :-(

Harold,

I'm not backpedaling. I stand by my statements that email communications are not included in the current law.

I don't know that all errant boards out there will "embrace" the new law, if and when it does become law. That's why we fought so hard last year to get the OAH to hear HOA disputes. It wasn't the perfect solution, but at least it was something. But, at least when SB1019 becomes law, it will be spelled out leaving no doubt in anyone's mind whether or not email communications, emergency meetings, etc. apply. I like to think most property managers know what laws the board members should be obeying. When in doubt they should be advising the board to seek legal advice. What I said is that small assn's don't have these means available to them and they are generally the ones in the dark about state laws.

I agree property mgmt companys should be regulated. There was a bill sponsored by Rep. McQuire - HB2789 - this session. It was assigned to 2 committees in the House but never did get a hearing. Guess the mgmt co lobby (ACCM) was too powerful! I don't consider myself to have an "in" at the Legislature, I was just lucky that Sen. Harper was agreeable to sponsor this bill for me. Perhaps you should think about approaching your legislators, you might be surprised!

"Perhaps you should think about approaching your legislators, you might be surprised!" LOL! I sure would be. My two reps are Jerry Weiers and John Nelson - neither of whom have ever returned an email inquiry. And for senator I have the bloated Robert Blendu. All three of them are bought and paid for.
I have sat in committee hearings with Jack Harper in charge. He has some odd mannerisms. I have actually exchanged emails with him too. At least he responds.

Has this bill passed yet?

Yes, there's a lot of wheeling and dealing going on behind closed doors. A group of lobbyists want to tack HB2841 (which died when the Senate JUD comm chm refused to hear it!) onto the bill. Problem is they can't agree on the amendment they want to put on HB2841. One of the lobbyists is working to get them to agree to letting SB1019 go through w/o HB2841. Once that happens, this lobbyist will then work on Rep. Robson to urge him to schedule it for the Rules Comm. I won't go into the reason Robson has been holding it since 4/7! What's really disgusting about the whole thing is that this bill has no opposition. And of course that's why they want to tack the other bill onto it. Like I told Sen. Harper awhile back, politics stinks!! Hopefully it will get to the House floor w/i the next several weeks.

Very true, Bruce! And, what goes on behind the scenes is mind-boggling, to say the least.

We have the stike-everything amendment here in AZ too. IMO, it should be outlawed as far too many times the legislators vote w/o taking the time to know exactly what they're voting for. In AZ, a bill dies in committee when the comm. chairman decides not to put it on the agenda. It can also die without ever getting to a committee if the Speaker or the Pres doesn't assign it to a committee! The bill fails when it doesn't get the required number of votes, whether in committee or on the floor of the Senate or House. I think more bills die rather than fail!

This year we had 20 HOA bills introduced. Two have been signed by the Gov and 1 was transmitted to the Gov today; 12 are dead; 1 failed in committee; and the other 4 are hung up somewhere.