"sunshine laws"

Is it generally accepted that HOA's fall under the provisions of a states "sunshine law"?

Here is the act in its entirety: http://www.wvsos.com/adlaw/register/openmeetingshandbook.htm

I live in WV and here is an excerpt for the WV sunshine law:

*************************************************************

INTERPRETATIONS OF THE ACT

When posed with an Open Governmental Proceedings Act (Open Meetings Act) question, three initial inquiries must be made to determine if a governmental proceeding is required to be open under the Act. These questions are:

1. Is the entity a governing body of a public agency as defined by the Open Meetings Act?

2. Is the governing body's gathering a meeting as defined by the Open Meetings Act?

3. Is there a specific statutory exception to the Open Meetings Act?

The answers to these questions may be found in the Act or in the statute of the public agency involved. If a meeting of the governing body of a public agency is involved, and it is not covered by a specific statutory exception to the provisions of the Open Meetings Act, then the meeting must be open to the public.

The following West Virginia Supreme Court of Appeals decisions and Attorney General's Opinions have defined more specifically the governmental proceedings which must be open to the public under the Open Meetings Act. Although an Opinion of the Attorney General does not have the force of law, it is the official opinion of the State's chief legal officer as to how the West Virginia Supreme Court would rule should the same issue be before the Court.

PUBLIC AGENCY:

The definition of a "public agency" [formerly "public body"] in the Open Meetings Act includes any administrative or legislative unit of the State or of any county, board of education or municipality. It does not include the judiciary. W. Va. Code § 6-9A-2(6) (1999). "Governing body" means two or more members of any public agency having authority to make decisions or recommendations on policy or administration. W. Va. Code § 6-9A-2(3) (1999).

Bahhhh!

I called the State ethics office and asked if HOA's were required to adhere to the state open meetings laws and she said that it only applied to governmental agencies.

I put in a call to my States Attorney Geerneral's office to see if there are any provisions that are in my state concerning how the Board conducts business.

Ok, well I have called:

The States Attorney
The Secretary of State office
My County Commissioners office
WV Department of ethics

I'm up the creek without a paddle. WV has virtually no provisions on how HOA's conduct business outside financial matters.

There is virtually no accountability whatsoever that I can find in my state or county. Fortunately I'm not the one with the problem. I fighting for people who don't even know I exist. I'm VP of my Board. Yesterday they decided to write a letter to a family they suspect "may" have more than one family living in the home. Our rules prohibit "multi-family arrangements, but, as our lawyer pointed out last time they tried to remove people in the same situation, our CC&R's don't actually define what a "multi-family" home is. Therefore the interpretation is pretty broad.

The group we have now is going to get this HOA sued.

I'm running out of ideas.....

Robert,

Thanks for your input.

In WV Chapter 36B regulates "common interest communities" and there is little to nothing under "meetings". I am however finding some good information under another chapter, 31E which regulates "non-profit" corporations. There is quite a bit more in this section that defines how "non-profits" should conduct business.

At the very least this section addresses voting outside of duly called meetings. Here it is:

(a) Any action which, under any provision of this chapter, may be taken at a meeting of members may be taken without a meeting if one or more members consents in writing, setting forth the action taken or to be taken, signed by all of the persons who would be entitled to vote upon the action at a meeting, or by their duly authorized attorneys which action for purposes of this subsection is to be referred to as "unanimous written consent". The secretary shall file the consent or consents, or certify the tabulation of the consents and file the articles, with the minutes of the meetings of the members. A unanimous written consent must have the same force and effect as a vote of the members at a meeting duly held, and may be stated as having the same force and effect as a vote of the members in any articles or document filed under this chapter.

I would still like to find something that deals with executive session. The Board can shelter itself by calling for executive session on all the items on the agenda they don't want to share with the public.

I'll keep at it.

Thanks again!

Hello All

I found this forum while reseaching the Sunshine Act in regards to regulating private communities. By reading the responses I see I am not alone on my quest.

Chris from WV, if you are still, I'd like to compare notes with you.

I have been fighting based on the definition of "Agency" according to the PA Sunshine Act, "or similiar organizations created by or pursuant to a statue which declares in subsatnce that the organization performs or has for its purpose the performance of an essential governmental function and through joint action of its memebrs exercises governmental authority and takes official action.".

If there is anyone out there still fighting this fight, please respond. Thanks and Peace!

ChrisB said: " There is virtually no accountability whatsoever that I can find in my state or county."

For the record, the accountability is in the documents and rests with the homeowner/members.

The homeowners have to care enough, however, and that's the biggest hurdle.

On the other hand, our municipality has a zoning regulation regarding multi-families in a single-family residence.

We have pursued the issue twice and the monkey was removed from the board's back and placed onto the zoning enforcement officials.

Who did enforce.

It turns out that the "suspicion" was legitimate and one house had 2 families, both with more than 3 kids for a total of like 7 kids, living in it.

Sure, it was a HUGE house, but still, their multi-family capacity exceeded the local restrictions on living space.

The other case was an elderly family who had their son living with them, which was no big deal, except he was also allowing "roommates" in the house, and the local zoning officials enforced against that, too.

Fortunately, we did not have to engage in any "investigation" or trying to "prove" anything, as once the information of the possibility of the zoning violations was turned over to the local enforcement agency, they handled it from there.

The second family was ordered to move out, which they did, and the "roommates" of the son were ordered to move out as well, which they did.

Good luck to you.

ChrisB, I hear what you are saying about the main protagonist here, and I don't know what to tell you except to continue behaving in a reputable manner and your reputation will ultimately speak for itself, as his will about him.

However, I think you might be mistaken that you don't have zoning requirements that cover how many of whom can live/reside in one dwelling.

I would be very surprised if your municipality, or county, or parish, or state, or whatever, didn't have some set of ordinances or zoning regs governing how many people, related or otherwise, can live in one dwelling zoned of a certain classification.

But I recognize that your larger issue in this particular discussion is what you can do to reign this guy in, short of a neighborhood coup. It's like that in my state, Kentucky, as well.

HOAs are not government bodies and aren't covered under any rules that apply to government agencies or bodies.

Best of luck to you.

(**PS: LOVE the comment, "not subjective, just my opinion!"**)

Lizz,

I can tell you that the Sunshine law as it is now in Florida has 2 different paragraphs that state that HOAs are not required to follow the Sunshine Laws because our Statutes 720 are the governing laws and that 720 requires that all meetings of the Board must be open to the residents except in meetings between the Board and it's attorney in reguards to litigation and legal matters. So what you are saying is that the Fl Sunshine Laws will be amended to include HOA's? In escessence, the 720 Statutes are stricter than the Sunshine laws as they are written to date so I question that they would add HOAs to the law.

Donna,

Perhaps that is what they meant. It was second hand information given to me. I do not believe PA has the same Statues, but I have not finished my research.

Susan,

Part of the problem is that the board has taken our ability to address them in public at any meeting away. We have to wait for the quarterly town hall meetings with Dept. heads and then it is by a written statement only which has to be in 2 weeks prior to the meetting and then...you are not guaranteed that they will choose your written statement to respond to.

I understand about the election process and the board members entrusted to do the right thing but business is NOT to be conducted behind closed doors. Legal discussions of such, yes, but not the motion to approve it.

ChrisB4: It would seem to me that HOAs are NOT a government agency and would not apply.

However, with the group who wants "to write a letter to a family they suspect "may" have more than one family living in the home", you need to have your info accurate from the Declaration portion of your docs to learn IF
the unit is for a Single Family Home. Also, speak with your local municipality office on their codes/regulations and what constitutes a single-family home.

For the group to suspect that a unit 'may' have more than one family living in the home is not reason to send a violation letter. Positive proof would certainly be necessary, IMO, before this approach should be taken.

It sounds like you have made yourself a type of arbitrator between this group and the family in the unit and are having trouble stonewalling this group.
You are all treading on territory which is at best very vague when deciding the number of members which constitute a "single family". Why not work
to learn the true situation and deal with the specifics of the actual problem/s these multiple members are causing--all according to your docs.

Chris, again, I'm totally not trying to nit pick you on this, but the advice that attorney gave may not have been sufficient.

Especially in this time of undocumented immigrants, courts are getting very aggressive on the crowding of people into specific square footage. The old "short of a boarding house" mentality doesn't really apply anymore.

I would certainly get a second opinion on that attorney's "opinion" in addition to having the Board "shore" up the vagueness of the wording. That can be done in more HOAs that you might think, given that many of them provide the board with the ability to make interpretations and definitions of "cloudy" areas, and those board-determined interpretations and definitions are binding.

And Paul is still correct in one regard, that local zoning/housing statutes could very well apply.

Paul, I do disagree with you in one regard, and that is that you can't send a letter out just on suspicion. The board wouldn't need "proof" to send a notice worded something like "we have been informed that ...... and would like to take the opportunity to remind you that our governing documents restrict multi-families .... (cite the passage) .... we respectfully request that if there are more than one family residing, please bring the property into compliance."

But I still say that is better handled by an enforcement arm of local zoning.

Also, one final little quirky thing for me, Chris (seriously, I'm not picking on you -- ! LOL, it just SEEMS that way!)

Re: lack of accountability. You state: "Even as an individual if you sue and win, often you still loose since your stuck with a lawyer bill . . ." but even if you do have the lawyer bill, there has still been an enormous gain. It's a long-term gain that will end up paying for itself, IF the lawyer was not able to get the board to pay.

Because the board now knows they CAN be held accountable and WILL be held accountable and that the membership WILL do that, then they will be much less likely to go down that same road.

Anyway, I hate to hear of your'alls problems with boards.

Why would you think of it as "sicking" the county on them?

They have the tools and the appropriate mechanisms to investigate whether in fact zoning restrictions are being violated.

They get lots of calls like this and are prepared and able to investigate.

If there is no infraction, then there has been no foul. If there is, then it is not in your hands, anyway, nor does it really need to be. The zoning officials will enforce to make sure they are up to code.

I know you are not arguing, and I didn't want you to think I was arguing with you either, so we're good to go there. Just discussing and trying to feel this thing out.

For the most part, in our HOA we usually try to verify when there is a complaint. In some cases, such as the home business or the multi-family thing, it's a little tougher and, quite frankly, we don't have the authority to enter the home and search it (nor would we want to have that authority!)

On the two homes that had the additional people living in them, we first turned our notification over to the zoning enforcement department. We didn't "sick" the agency on them, but if they were violating codes, why would you not want that cleared up? There are very good reasons for many of the zoning codes that are in place, not only for the benefit of the people living in the homes, but for the benefit of the community, as well. So if someone is violating, then why would someone not want that addressed? Even though our CC&Rs address it, like I said, we don't have the ability to do the proper investigation and resolution, they do.

We did just have a similar thing come up with a home business, though. We had a resident ask us why the people who dropped their kids off at XXXX's house to her "day care center" were not expected to follow the same rules re: speed limit etc, that the rest of the homeowners do. We were like, "day care center?!"

Well, if you drive by, which we did, you cannot tell it from any other house. Yes, there are kids outside playing, but how do we know they don't live there?

So we did an address search online for local day care centers. Her address popped up. Still, that's really not "proof" since it was an old database.

So we sent the letter, "It has been brought to our attention. ... blah blah ... just a reminder that home businesses are restricted by our documents, blah blah, etc. Please cease all daycare operations immediately, if such are occurring, etc etc"

We really didn't know what we would do if they ignored the letter, but had contacted our attorney just in case, and he was prepared for the "next steps."

The thing is, they didn't ignore the letter! She called all crying and saying she was not running a business, just helping out some friends, watching their kids for free, etc etc etc. We tell her, okay, just ask them to please pay attention to the speed limits, etc.

Then we find out, quite by accident, about a month later that she IS running a day care and the state just awarded her her new license/certificate for the year, and it turns out she had been running the day care for the 3 or 4 years she lived here.

We sent a second letter regarding the information, and rather than call us back that time, they simply put their home up for sale.

She will, however, have to cease and desist the daycare operations while they try to sell their home.

She did have one of her neighbors call us and ask us if we would waive the restriction since they are great people who keep their grass cut.

wow.....sorry I brought it back to life. I didn't mean to open old wounds here, just thought that some of you might be good sounding boards.

Well, it has actually. I am heading to my State Reps office in the afternoon I found a copy of FL Statute Chapter 720 HomeOwners Associations to use as a model. It reads just like the Sunshine Act but more!!!

So I will now move my fight from in-house rules to State Legislature ;)

I do know our BOD in FL got in trouble for violating the Sunshine Act.